Certain Cut-to-Length Carbon-Quality Steel Plate Products From Italy: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 39299-39303 [E6-10952]
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Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Notices
39299
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[FR Doc. 06–6165 Filed 7–11–06; 8:45 am]
FOR FURTHER INFORMATION CONTACT:
BILLING CODE 3510–33–P
Thomas Martin or Mark Manning, AD/
CVD Operations, Office 4, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–3936 or (202) 482–
5253, respectively.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF COMMERCE
International Trade Administration
(A–475–826)
Certain Cut–to-Length Carbon–Quality
Steel Plate Products From Italy: Final
Results and Partial Rescission of
Antidumping Duty Administrative
Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: On March 6, 2006, the
Department of Commerce (the
‘‘Department’’) published the
preliminary results of the administrative
review of the antidumping duty order
on certain cut–to-length carbon–quality
steel plate products (‘‘CTL Plate’’) from
Italy. See Certain Cut–To-Length
Carbon–Quality Steel Plate Products
From Italy: Preliminary Results and
Partial Rescission of Antidumping Duty
Administrative Review, 71 FR 11178
(March 6, 2006) (‘‘Preliminary Results’’).
This review covers five producers/
exporters of CTL Plate. The period of
review (‘‘POR’’) is February 1, 2004,
through January 31, 2005.
Based upon our analysis of the record
evidence, the Department finds that the
application of adverse facts available
(‘‘AFA’’) is warranted with respect to
Palini and Bertoli S.p.A. (‘‘Palini’’).
Further, the Department is rescinding
the review with respect to Trametal
S.p.A. (‘‘Trametal’’) because there is no
entry against which to collect duties.
The Department is also rescinding the
review for Metalcam S.p.A.
(‘‘Metalcam’’) and Riva Fire S.p.A.
(‘‘Riva Fire’’) because they had no
shipments during the POR. The
Department is also rescinding this
review with respect to Ilva S.p.A.
(‘‘Ilva’’) because Ilva was improperly
included in this administrative review.
EFFECTIVE DATE: July 12, 2006.
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Background
On March 6, 2006, the Department
published the Preliminary Results in the
Federal Register and invited interested
parties to comment on those results. On
April 27, 2006, the Department received
case briefs from Palini and its customer,
Wirth Steel of Canada (‘‘Wirth’’). On
May 10, 2006, the Department received
a rebuttal brief from Nucor Corporation
(‘‘Nucor’’), a petitioner.
Scope of the Order
The products covered by the scope of
this order are certain hot–rolled carbon–
quality steel: (1) Universal mill plates
(i.e., flat–rolled products rolled on four
faces or in a closed box pass, of a width
exceeding 150 mm but no exceeding
1250 mm, and of a nominal or actual
thickness of not less then 4 mm, which
are cut–to-length (not in coils) and
without patterns in relief), of iron or
non–alloy-quality steel; and (2) flat–
rolled products, hot–rolled, of a
nominal or actual thickness of 4.75 mm
or more and of a width which exceeds
150 mm and measures at least twice the
thickness, and which are cut–to-length
(not in coils). Steel products to be
included in this scope are of
rectangular, square, circular or other
shape and of rectangular or non–
rectangular cross-section where such
non–rectangular cross-section is
achieved subsequent to the rolling
process (i.e., products which have been
‘‘worked after rolling’’)-for example,
products which have been beveled or
rounded at the edges. Steel products
that meet the noted physical
characteristics that are painted,
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varnished or coated with plastic or other
non–metallic substances are included
within this scope. Also, specifically
included in this scope are high strength,
low alloy (HSLA) steels. HSLA steels are
recognized as steels with micro–alloying
levels of elements such as chromium,
copper, niobium, titanium, vanadium,
and molybdenum. Steel products to be
included in this scope, regardless of
Harmonized Tariff Schedule of the
United States (HTSUS) definitions, are
products in which: (1) Iron
predominates, by weight, over each of
the other contained elements, (2) the
carbon content is two percent or less, by
weight, and (3) none of the elements
listed below is equal to or exceeds the
quantity, by weight, respectively
indicated: 1.80 percent of manganese, or
1.50 percent of silicon, or 1.00 percent
of cooper, or 0.50 percent of aluminum,
or 1.25 percent of chromium, or 0.30
percent of cobalt, or 0.40 percent of
lead, or 1.25 percent of nickel, or 0.30
percent of tungsten, or 0.10 percent of
molybdenum, or 0.10 percent of
niobium, or 0.41 percent of titanium, or
0.15 of vanadium, or 0.15 percent
zirconium. All products that meet the
written physical description, and in
which the chemistry quantities do not
equal or exceed any one of the levels
listed above, are within the scope of this
order unless otherwise specifically
excluded. The following products are
specifically excluded from this order:
(1) Products clad, plated, or coated with
metal, whether or not painted,
varnished or coated with plastic or other
non–metallic substances; (2) SAE grades
(formerly AISI grades) of series 2300
and above; (3) products made to ASTM
A710 and A736 or their proprietary
equivalents; (4) abrasion–resistant steels
(i.e., USS AR 400, USS AR 500); (5)
products made to ASTM A202, A225,
A514 grade S, A517 grade S. or their
proprietary equivalents; (6) ball bearing
steels; (7) tool steels; and (8) silicon
manganese steel or silicon electric steel.
The merchandise subject to this order
is classified in the HTSUS under
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subheadings: 7208.40.3030,
7208.40.3060, 7208.51.0030,
7208.51.0045, 7208.51.0060,
7208.52.0000, 7208.53.000, 7208.90.000,
7210.70.3000, 7210.90.9000,
7211.13.0000, 7211.14.0030,
7211.14.0045, 7211.90.000,
7212.40.1000, 7212.40.5000,
7212.50.0000, 7225.40.3050,
7225.40.7000, 7225.50.6000,
7225.90.0090, 7226.91.5000,
7226.91.7000, 7226.91.8000,
7226.99.0000.
Although the HTSUS subheadings are
provided for convenience and Customs
purposes, the written description of the
merchandise subject to this order is
dispositive.
Analysis of Comments Received
The issues raised in the case and
rebuttal briefs are addressed in the
Issues and Decision Memorandum to
David M. Spooner, Assistant Secretary
for Import Administration, from
Stephen J. Claeys, Deputy Assistant
Secretary for Import Administration,
dated concurrently herewith (the
‘‘Issues and Decision Memorandum’’),
which is adopted herein, by reference.
Attached, as an appendix to this notice,
is a list of the comments the Department
received from interested parties, all of
which are discussed in the Decision
Memorandum. The Issues and Decision
Memorandum is on file in the Central
Records Unit, room B–099 of the
Herbert C. Hoover Building, and may be
accessed on the Web at https://
ia.ita.doc.gov/frn/.
Changes Since the Preliminary Results
Based on our analysis of the
comments received, the Department has
made a change from the Preliminary
Results. Specifically, for these final
results, the Department has selected a
dumping margin of 10.31 percent as
AFA for Palini.
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Adverse Facts Available
For the reasons discussed below, we
determine that it is appropriate to apply
AFA toward Palini for these final results
of review.
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 (A) withholds
information requested by the
Department, (B) fails to provide such
information by the deadlines for
submission of the information, or in the
form or manner requested, subject to
section 782 of the Act, (C) significantly
impedes a proceeding under this title, or
(D) provides information that cannot be
verified as provided in section 782(i) of
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the Act, the Department 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.
As discussed in more detail below,
Palini did not submit the information
requested by the Department in the May
11, 2005, questionnaire by the
established deadline, leaving the
Department with no information to
review or verify. Section 782(d) of the
Act directs the Department to notify a
respondent when the Department finds
its response deficient. Since there was
no response to the May 11, 2005,
questionnaire, there is no information
for the Department to review. Thus,
section 782(d) of the Act does not apply
in this case. In addition, Palini’s failure
to respond to the Department’s May 11,
2005, request for information resulted in
an incomplete record of review, which
could not serve as a reliable basis for the
Department to reach an applicable
determination, thereby impeding this
review. Thus, in deciding these final
results of review, pursuant to sections
776(a)(2)(A) and (C) of the Act, we have
based Palini’s dumping margin on facts
otherwise available because Palini (1)
withheld information specifically
requested by the Department in the May
11, 2005, questionnaire and (2)
significantly impeded the antidumping
proceeding because the incomplete
record of review cannot serve as a
reliable basis for the Department to
reach an applicable determination.
In this case, although the Department
provided Palini with notice of the
consequences of failure to respond
adequately to the May 11, 2005,
questionnaire before the applicable
deadline, Palini chose not respond to
the questionnaire. See May 11, 2005,
questionnaire at page G–3. Specifically,
the Department requested, in its May 11,
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2005, questionnaire, that Palini report
the total quantity and value of the
merchandise under review sold during
the POR in (or to) the United States. Id.
at question one. In addition, this
questionnaire stated ‘‘{i}f you are aware
that any of the merchandise you sold to
third countries was ultimately shipped
to the United States, please contact the
official in charge within two weeks of
the receipt of this questionnaire.’’ Id. at
question nine. As discussed below,
Palini failed to respond to question one
of the Department’s questionnaire even
though it had two sales that it shipped
directly to the United States during the
POR. In addition, even though it had
sales to a third country, of which some
portion was ultimately shipped to the
United States, Palini failed to contact
the official in charge as requested by the
questionnaire.
Rather than immediately conclude
that Palini was a non–cooperative
respondent, the Department, on June 6,
2005, issued a letter, pursuant to 19 CFR
351.213(d)(3), to Palini in which the
Department requested that Palini
indicate whether the reason for its
failure to respond to the May 11, 2005,
questionnaire was because Palini had no
shipments or sales to the United States
during the POR. In response to the June
6, 2005, letter, Palini informed the
Department that ‘‘all of our exports to
{the} USA were made through our
Canadian customer Wirth Steel. They
purchase steel from us mainly for
shipment to Windsor, Ontario and we
have no knowledge of the portion of the
orders that ultimately are delivered ’in
bond’ into the U.S. market.’’ See
Memorandum from Thomas Martin,
International Trade Compliance
Analyst, to the File, ‘‘Receipt of
Emailed, Faxed, and Mailed
Communication,’’ dated October 2,
2005, at Attachment 1, which includes
Palini’s June 14, 2005, email. We note
that Palini made no mention in its
response to the Department’s June 6,
2005, letter that it shipped two of its
sales directly from Italy to the United
States.
Prompted by Palini’s June 14, 2005,
assertion that it had no knowledge of
which sales entered the United States,
the Department requested
documentation from CBP in an attempt
to confirm Palini’s statements in the
June 14, 2005, email. See Memorandum
from Thomas Martin, International
Trade Compliance Analyst, to The File,
‘‘Request for U.S. Entry Documents’’
dated June 29, 2005. When the
Department received information from
CBP that Palini had sales shipped
directly from Italy, some portion of
which were entered for consumption
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into the U.S. market, thereby
contradicting Palini’s June 14, 2005,
assertion, it made several requests to
CBP for more detailed information. See
Memorandum from Thomas Martin,
International Trade Compliance
Analyst, to The File, ‘‘Request for U.S.
Entry Documents’’ dated October 4,
2005. In the end, the Department
requested and obtained a large number
of customs entries from CBP pertaining
to Palini and Wirth, and conducted
analysis of these documents. See
Memoranda from Thomas Martin,
International Trade Compliance
Analyst, to The File, ‘‘U.S. Entry
Summary Documents’’ dated January 4,
2006, and January 18, 2006. After
analyzing the relevant documentation
from CBP, the Department sent a
supplemental questionnaire to Palini to
give it an opportunity to explain the
discrepancies between its June 14, 2005,
email and the CBP documents
demonstrating direct shipments from
Italy and consumption entries. See
January 6, 2006, supplemental
questionnaire.
Palini submitted its supplemental
questionnaire response on January 27,
2006. In response to the Department’s
request to clarify its initial statement
that it has ‘‘no knowledge of the portion
of the orders that ultimately are
delivered ‘in bond’ into the U.S.
market,’’ Palini replied that ‘‘the portion
{of Palini’s sales} that Wirth Steel
shipped to Canada, part of it was kept
in bond in Canada and then shipped
later to the USA. Alternatively some of
the steel delivered to U.S. ports was
kept in bond and {subsequently}
shipped to Canada.’’ See Palini’s
January 27, 2006, submission at 3. Thus,
Palini clarified that it knew that some of
its sales to Wirth were delivered to U.S.
ports, but that it did not know which
portion of those sales remained within
the U.S. market.
Palini also stated in its supplemental
response that Wirth provided it with the
destinations for each shipment and that
Palini included this information in its
commercial invoices and shipping
documents. Id. at 3–4. Palini provided
its commercial invoices and bills of
lading for the two sales in question,
which are kept in the normal course of
business. Id. at pages 12–15, 48, and 50
of the Attachment. These documents list
U.S. destinations, thereby
demonstrating that Palini had
knowledge that these two sales were
shipped directly to U.S. destinations. In
the Preliminary Determination, the
Department applied the knowledge test
to these facts and found that Palini had
knowledge of direct shipments to the
United States of subject merchandise.
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See Preliminary Determination at 71 FR
at 11180. For these final results, we
continue to find that Palini had
knowledge that two of its sales to Wirth
were destined for the United States.
However, as discussed concurrently in
the Issues and Decision Memorandum,
the Department’s knowledge test does
not require Palini to know the final
destination of the subject merchandise.
See Issues and Decision Memorandum
at 6–7.
In sum, Palini failed to respond to the
Department’s May 11, 2005,
questionnaire or to request an extension
of the deadline prior to the due date for
the questionnaire, as required by section
351.302(c) of the Department’s
regulations. Palini did not report its two
sales of subject merchandise shipped to
the United States, nor did Palini
indicate in response to the Department’s
June 6, 2005, letter that it knew that two
of its sales were destined for the United
States. Palini only acknowledged that
two of its sales were shipped directly to
the United States after the Department
informed Palini that CBP documents
contradicted its earlier assertions. The
Department, therefore, finds that Palini
withheld information that the
Department specifically requested.
Additionally, by not responding to the
initial questionnaire and waiting to
reveal its knowledge that two of its sales
were shipped directly to the United
States, Palini impeded this segment of
the proceeding by preventing the
Department from issuing supplemental
questionnaires to obtain and examine its
sales of subject merchandise, and from
calculating a dumping margin for
Palini’s sales within the statutory time
for completing this review. Therefore,
the Department has determined that it
must base Palini’s dumping margin on
the facts otherwise available pursuant to
sections 776(a)(2)(A) and (C) of the Act.
B. Application of Adverse Inferences for
Facts Available
In selecting from among the facts
otherwise available, section 776(b) of
the Act authorizes the Department to
use an adverse inference if the
Department finds that an interested
party ‘‘failed to cooperate by not acting
to the best of its ability to comply with
a request for information.’’ The Court of
Appeals for the Federal Circuit
(‘‘Federal Circuit’’) has held that the
statutory mandate that a respondent act
to the ‘‘best of its ability’’ requires the
respondent to do the maximum it is able
to do. See, e.g., Nippon Steel Corp. v.
United States, 337 F.3d 1373, 1382 (Fed.
Cir. 2003). In the instant case, Palini
knew that its two sales were destined
for the United States. However, Palini
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39301
failed to report its sales of subject
merchandise to the United States or
even to respond to the May 11, 2005,
questionnaire. Further, Palini did not
disclose these two sales in response to
the Department’s June 6, 2005, letter
asking Palini to inform the Department
if ‘‘it had no shipments or sales of cut–
to-length carbon quality steel plate to
the United States during the POR.’’
Rather than doing the maximum it was
able to do in response to the
Department’s requests for information,
Palini chose to not report sales it knew
had been shipped to the United States.
Therefore, the Department finds that
Palini failed to cooperate to the best of
its ability in complying with the
Department’s requests for information.
Because Palini did not cooperate to the
best of its ability, the Department, in
selecting from among the facts
otherwise available will use an
inference that is adverse to the interests
of Palini. See section 776(b) of the Act.
Section 776(b) of the Act authorizes
the Department to use as AFA
information derived from (1) the
petition, (2) a final determination in the
investigation under this title, (3) any
previous review under section 751 or
determination under section 753, or (4)
any other information on the record. Id.
It is the Department’s practice normally
to select as AFA the highest margin
calculated in any segment of the
proceeding for any respondent. See, e.g.,
Notice of Final Results of Antidumping
Duty Administrative Review and Final
Partial Rescission: Certain Cut–toLength Carbon Steel Plate from
Romania, 71 FR 7008 (February 10,
2006). The CIT and the Federal Circuit
have consistently upheld Commerce’s
practice. See Rhone Poulenc, Inc. v.
United States, 899 F.2d 1185, 1190 (Fed.
Cir. 1990); see also NSK Ltd. v. United
States, 346 F. Supp. 2d 1312, 1335 (CIT
2004); see also Kompass Food Trading
Int’l v. United States, 24 CIT 678, 689
(CIT 2000); and Shanghai Taoen Int’l
Trading Co. v. United States, 360 F.
Supp. 2d 1339 (CIT 2005). In this case,
because there have been no
administrative reviews since the
investigation and no interested party
has placed information on the record to
be used as a source of the AFA rate, the
only information available from which
to derive the AFA rate is information
from the investigation and the petition.
Section 776(c) of the Act requires that,
where the Department selects from
among the facts otherwise available and
relies on ‘‘secondary information,’’ the
Department shall, to the extent
practicable, corroborate that information
from independent sources reasonably at
the Department’s disposal. Secondary
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information is described in the
Statement of Administrative Action as
‘‘{i}nformation derived from the
petition that gave rise to the
investigation or review, the final
determination concerning the subject
merchandise, or any previous review
under section 751 concerning the
subject merchandise.’’ See Statement of
Administrative Action Accompanying
the Uruguay Round Agreements Act,
H.R. Rep. No. 103–316 at 870 (1994)
(‘‘SAA’’). The SAA states that
‘‘corroborate’’ means to determine that
the information used has probative
value. Id. The SAA also states that
independent sources used to corroborate
such evidence may include, for
example, published price lists, official
import statistics and customs data, and
information obtained from interested
parties during the particular
investigation. Id; see also Notice of
Preliminary Determination of Sales at
Less Than Fair Value: High and Ultra–
High Voltage Ceramic Station Post
Insulators from Japan, 68 FR 35627
(June 16, 2003); Notice of Final
Determination of Sales at Less Than
Fair Value: Live Swine From Canada, 70
FR 12181 (March 11, 2005).
The Department attempted to
corroborate the petition rate. In the
petition, the petitioners estimated
export price based on the Average Unit
Values (‘‘AUVs’’) of imports of subject
merchandise from Italy during the
period of investigation (‘‘POI’’) and
based normal value (‘‘NV’’) on their own
production experience. The Department
examined the AUV data for the POR and
found that the AUVs for subject
merchandise have increased between
the POI and POR. See Memorandum
from Thomas Martin, International
Trade Compliance Analyst,
‘‘Comparison of Average Unit Values,’’
dated July 5, 2006. Regarding NV, there
is no information on the record of this
review with which to use in
corroborating the petition’s NV.
Therefore, the Department has found
that the information from the petition is
not probative in this review.
Because the petition rate is not
probative in this review, there have
been no prior administrative reviews of
this order, and no interested party has
placed information on the record to be
used as a source of the AFA rate, the
Department must look to information
from the investigation as the basis for
the AFA rate. See section 776(b) of the
Act. The only information on the record
of the investigation which can serve as
a basis for an adverse margin is Palini’s
own information. The Department
continues to find that using Palini’s own
rate from the investigation would not be
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sufficiently adverse so as ‘‘to effectuate
the purpose of the facts available role to
induce respondents to provide the
Department with complete and accurate
information in a timely manner.’’ See
Static Random Access Memory
Semiconductors from Taiwan: Final
Determination of Sales at Less Than
Fair Value, 63 FR 8909, 8932 (February
32, 1998). The Department also finds
that using Palini’s rate from the
investigation would not prevent Palini
from obtaining a more favorable result
by failing to cooperate than if it had
cooperated fully. See SAA at 870; see
also D&L Supply Co. v. United States,
113 F. 3d 1220, 1223 (Fed. Cir. 1997).
The Federal Circuit recognized in F.Lii
de Cecco di Filippo Fara S. Martino
S.p.A. v. United States, 216 F.3d 1027
(Fed. Cir. 2000) (‘‘De Cecco’’) that the
AFA rate must necessarily be higher
than any estimate of the respondent’s
actual rate. See De Cecco, 216 F. 3d at
1032. For this reason, the Department
has chosen the highest dumping margin
calculated for any model for Palini in
the LTFV investigation, 10.31 percent,
as AFA. See Memorandum from
Thomas Martin, International Trade
Compliance Analyst, to the File,
‘‘Amended Final Determination
Calculation Memorandum,’’ dated July
5, 2006. This rate is reliable as it is
based on Palini’s own information and
is relevant to Palini’s own practices in
selling CTL Plate to the United States.
Therefore, given the record evidence
from the petition and from the instant
review, the Department finds that the
10.31 percent rate is the most
appropriate to use as AFA and is
assigning it to Palini.
Partial Rescission of Administrative
Review
Pursuant to the February 28, 2005,
request made by Nucor Corporation, a
petitioner to this proceeding, the
Department initiated this review with
respect to Ilva and four other producers
of subject merchandise. See Initiation of
Antidumping and Countervailing Duty
Administrative Reviews and Requests
for Revocation in Part, 70 FR 14643
(March 23, 2005). The Department
preliminarily intended to rescind this
review due to an assertion of no
shipments by Ilva. See Preliminary
Results. However, upon review of the
record of the proceeding the Department
determined that initiation of a review of
Ilva was improper because Ilva is
excluded from the order due to
receiving a de minimis final margin in
the less than fair value investigation.
See Notice of Amendment of Final
Determinations of Sales at Less Than
Fair Value and Antidumping Duty
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Orders: Certain Cut–To-Length Carbon–
Quality Steel Plate Products From
France, India, Indonesia, Italy, Japan
and the Republic of Korea, 65 FR 6585
(February 10, 2000). For this reason, the
Department is rescinding the review
with respect to Ilva.
The Department’s practice, supported
by substantial precedent, requires that
there be entries during the POR upon
which to assess antidumping duties, to
conduct an administrative review. See
Granular Polytetrafluoroethylene Resin
from Japan: Notice of Rescission of
Antidumping Duty Administrative
Review, 70 FR 44088 (August 1, 2005).
Pursuant to 19 CFR § 351.213(d)(3), the
Department will rescind an
administrative review in whole or only
with respect to a particular exporter or
producer if it concludes that during the
POR there were ‘‘no entries, exports, or
sales of the subject merchandise.’’ In
response to the Department’s
questionnaire Metalcam and Riva Fire
informed the Department via letters
dated May 24, 2005, and May 30, 2005,
that they did not ship subject
merchandise to the United States during
the POR. The Department corroborated
these statements through CBP entry
data, which indicate that there were no
entries of subject merchandise from
these companies during the POR. Since
the Preliminary Results, no party has
provided the Department with any
evidence that Metalcam or Riva Fire had
entries or sales during the POR.
Therefore, in accordance with 19 CFR
§ 351.213(d)(3), the Department is
rescinding the administrative review
with respect to Metalcam and Riva Fire.
On June 13, 2005, Trametal responded
to the Department’s May 11, 2005,
questionnaire and informed the
Department that it made one sale of
subject merchandise to the United
States. The Department confirmed
Trametal’s claim of a single U.S. sale by
reviewing CBP import data and entry
documents. Although the entry
documents appear to indicate that
Trametal shipped subject merchandise
in its single sale to the United States
during the POR, the importer did not
enter the goods as subject to the
antidumping order, and CBP liquidated
the entry under its own authority. There
is no evidence to indicate that Trametal
has any connection to this importer.
Trametal has no entries during the
POR against which to collect duties. It
is the Department’s practice not to
conduct an administrative review when
there are no entries to be reviewed. See
Notice of Final Results of Antidumping
Duty Administrative Review: Portable
Electric Typewriters from Japan, 56 FR
14072, 14073 (April 5, 1991); and Notice
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12JYN1
Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Notices
of this clarification, see Assessment
Clarification.
In the instant review, the record
evidence demonstrates that Palini had
knowledge that two of its sales were
destined for the United States because
Palini’s commercial invoices and bills of
lading identify U.S. destinations. Record
evidence also indicates that Palini had
no knowledge of U.S. destinations for its
remaining sales because these sales
were destined for Canada where Wirth
then decided which sales, or which
portion of a particular sale, would
remain in Canada or would be exported
to the United States. Further, the
Department notes that Wirth does not
have its own cash deposit rate in the
proceeding. Pursuant to the
Department’s cash deposit hierarchy,
Wirth appropriately entered its sales
Final Results of Review
under the CBP case number for Palini.
Therefore, in accordance with our
As a result of this review, the
Assessment Clarification, entries of
Department determines that the
subject merchandise during the POR
following weighted–average dumping
produced by Palini and delivered by
margin exists for the period February 1,
Wirth to the United States without
2004, through January 31, 2005:
Palini’s knowledge will be liquidated at
the all–others rate in effect on the date
Margin
Manufacturer/Exporter
of entry, 7.85 percent, as Palini had no
(percent)
knowledge that these sales were
Palini and Bertoli S.p.A. .............
10.31 destined for the United States. Given the
entry–specific information on the record
Assessment
of this review, the Department will
identify to CBP entries of subject
The Department has determined, and
merchandise from the two shipments for
CBP shall assess, antidumping duties on
which Palini had knowledge of U.S.
all appropriate entries, pursuant to 19
destinations, and will instruct CBP to
CFR § 351.212(b). The Department
liquidate those entries at the AFA rate
calculates importer–specific duty
of 10.31 percent. The Department will
assessment rates on the basis of the ratio
issue appropriate assessment
of the total amount of antidumping
instructions directly to CBP within 15
duties calculated for the examined sales
days of publication of the final results
to the total entered value of the
of review.
examined sales. Where an importer–
In addition, the Department has
specific assessment rate is above de
rescinded the review with respect to
minimis, the Department will instruct
Metalcam, Riva Fire, and Trametal due
CBP to assess the importer–specific rate to no shipments made by these
uniformly on the entered value of all
producers. Metalcam, Riva Fire, and
entries of subject merchandise by that
Trametal have never participated in any
importer.
segment of this proceeding, and for this
The Department clarified its
reason, do not have their own CBP case
‘‘automatic assessment’’ regulation on
numbers. Therefore, entries of subject
May 6, 2003. See Antidumping and
merchandise produced by Metalcam,
Countervailing Duty Proceedings:
Riva Fira, and Trametal made during the
Assessment of Antidumping Duties, 68
POR through intermediaries will be
FR 23954 (May 6, 2003) (‘‘Assessment
liquidated at the all–others rate in effect
Clarification’’). This clarification will
on the date of entry.
apply to entries of subject merchandise
during the POR produced by companies Cash Deposits
included in these final results of review
The following cash deposit
for which the reviewed companies did
requirements will be effective upon
not know their merchandise was
publication of the final results of this
destined for the United States. In such
administrative review for all shipments
instances, the Department will instruct
of the subject merchandise entered, or
CBP to liquidate unreviewed entries at
withdrawn from warehouse, for
the all–others rate if there is no rate for
consumption on or after the publication
the intermediate company(ies) involved date of the final results of this
in the transaction. For a full discussion
administrative review, as provided by
sroberts on PROD1PC70 with NOTICES
of Proposed Rulemaking and Final
Comments: Antidumping Duties;
Countervailing Duties, 61 FR 7308, 7318
(February 27, 1996). Liquidation of
entries is final for all parties unless
protested within the prescribed period.
See 19 U.S.C. § 1514(a)(5). Because the
liquidation of Trametal’s entry is final,
the Department cannot assess
antidumping duties against that entry
pursuant to the final results of this
administrative review. Since the
Preliminary Results, no party has
provided the Department with any
evidence that Trametal had additional
entries or sales during the POR, or that
the liquidation has been protested.
Therefore, the Department is rescinding
the review with respect to Trametal,
pursuant to 19 CFR § 351.213(d)(3).
VerDate Aug<31>2005
18:23 Jul 11, 2006
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Frm 00024
Fmt 4703
Sfmt 4703
39303
section 751(a)(1) of the Act. In this case
(1) the cash–deposit rate for Palini will
be the rate established in the final
results of this review; (2) for previously
investigated or reviewed companies not
listed above, the cash deposit rate will
continue to be the company–specific
rate published for the most recent
period; (3) if the exporter is not a firm
covered in this review, a prior review,
or the less–than-fair–value (‘‘LTFV’’)
investigation, but the manufacturer is,
the cash deposit rate will be the rate
established for the most recent period
for the manufacturer of the subject
merchandise; and (4) if neither the
exporter nor the manufacturer is a firm
covered in this or any previous review
conducted by the Department, the cash–
deposit rate will be 7.85 percent, the
all–others rate established in the LTFV
investigation. These cash deposit rates,
when imposed, shall remain in effect
until publication of the final results of
the next administrative review. See
section 751(a)(2)(C) of the Act.
Notification to Parties
This notice serves as a final reminder
to importers of their responsibility
under 19 CFR § 351.402(f)(2) to file a
certificate regarding the reimbursement
of antidumping duties prior to
liquidation of the relevant entries
during this review period. Failure to
comply with this requirement could
result in the Secretary’s presumption
that reimbursement of the antidumping
duties occurred and the concomitant
assessment of double antidumping
duties. This notice is also the only
reminder to parties subject to the
administrative protective order (‘‘APO’’)
of their responsibility concerning the
return or destruction of proprietary
information disclosed under APO in
accordance with 19 CFR § 351.305.
Timely written notification of the
return/destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and the terms of an
APO is a sanctionable violation.
The Department is publishing this
notice in accordance with sections
751(a)(1) and 777(i)(1) of the Act.
Dated: July 5, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6–10952 Filed 7–11–06; 8:45 am]
BILLING CODE 3510–DS–S
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]]>Agencies
[Federal Register Volume 71, Number 133 (Wednesday, July 12, 2006)]
[Notices]
[Pages 39299-39303]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-10952]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
(A-475-826)
Certain Cut-to-Length Carbon-Quality Steel Plate Products From
Italy: Final Results and Partial Rescission of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On March 6, 2006, the Department of Commerce (the
``Department'') published the preliminary results of the administrative
review of the antidumping duty order on certain cut-to-length carbon-
quality steel plate products (``CTL Plate'') from Italy. See Certain
Cut-To-Length Carbon-Quality Steel Plate Products From Italy:
Preliminary Results and Partial Rescission of Antidumping Duty
Administrative Review, 71 FR 11178 (March 6, 2006) (``Preliminary
Results''). This review covers five producers/exporters of CTL Plate.
The period of review (``POR'') is February 1, 2004, through January 31,
2005.
Based upon our analysis of the record evidence, the Department
finds that the application of adverse facts available (``AFA'') is
warranted with respect to Palini and Bertoli S.p.A. (``Palini'').
Further, the Department is rescinding the review with respect to
Trametal S.p.A. (``Trametal'') because there is no entry against which
to collect duties. The Department is also rescinding the review for
Metalcam S.p.A. (``Metalcam'') and Riva Fire S.p.A. (``Riva Fire'')
because they had no shipments during the POR. The Department is also
rescinding this review with respect to Ilva S.p.A. (``Ilva'') because
Ilva was improperly included in this administrative review.
EFFECTIVE DATE: July 12, 2006.
FOR FURTHER INFORMATION CONTACT: Thomas Martin or Mark Manning, AD/CVD
Operations, Office 4, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
3936 or (202) 482-5253, respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 6, 2006, the Department published the Preliminary Results
in the Federal Register and invited interested parties to comment on
those results. On April 27, 2006, the Department received case briefs
from Palini and its customer, Wirth Steel of Canada (``Wirth''). On May
10, 2006, the Department received a rebuttal brief from Nucor
Corporation (``Nucor''), a petitioner.
Scope of the Order
The products covered by the scope of this order are certain hot-
rolled carbon-quality steel: (1) Universal mill plates (i.e., flat-
rolled products rolled on four faces or in a closed box pass, of a
width exceeding 150 mm but no exceeding 1250 mm, and of a nominal or
actual thickness of not less then 4 mm, which are cut-to-length (not in
coils) and without patterns in relief), of iron or non-alloy-quality
steel; and (2) flat-rolled products, hot-rolled, of a nominal or actual
thickness of 4.75 mm or more and of a width which exceeds 150 mm and
measures at least twice the thickness, and which are cut-to-length (not
in coils). Steel products to be included in this scope are of
rectangular, square, circular or other shape and of rectangular or non-
rectangular cross-section where such non-rectangular cross-section is
achieved subsequent to the rolling process (i.e., products which have
been ``worked after rolling'')-for example, products which have been
beveled or rounded at the edges. Steel products that meet the noted
physical characteristics that are painted, varnished or coated with
plastic or other non-metallic substances are included within this
scope. Also, specifically included in this scope are high strength, low
alloy (HSLA) steels. HSLA steels are recognized as steels with micro-
alloying levels of elements such as chromium, copper, niobium,
titanium, vanadium, and molybdenum. Steel products to be included in
this scope, regardless of Harmonized Tariff Schedule of the United
States (HTSUS) definitions, are products in which: (1) Iron
predominates, by weight, over each of the other contained elements, (2)
the carbon content is two percent or less, by weight, and (3) none of
the elements listed below is equal to or exceeds the quantity, by
weight, respectively indicated: 1.80 percent of manganese, or 1.50
percent of silicon, or 1.00 percent of cooper, or 0.50 percent of
aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or
0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of
tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or
0.41 percent of titanium, or 0.15 of vanadium, or 0.15 percent
zirconium. All products that meet the written physical description, and
in which the chemistry quantities do not equal or exceed any one of the
levels listed above, are within the scope of this order unless
otherwise specifically excluded. The following products are
specifically excluded from this order: (1) Products clad, plated, or
coated with metal, whether or not painted, varnished or coated with
plastic or other non-metallic substances; (2) SAE grades (formerly AISI
grades) of series 2300 and above; (3) products made to ASTM A710 and
A736 or their proprietary equivalents; (4) abrasion-resistant steels
(i.e., USS AR 400, USS AR 500); (5) products made to ASTM A202, A225,
A514 grade S, A517 grade S. or their proprietary equivalents; (6) ball
bearing steels; (7) tool steels; and (8) silicon manganese steel or
silicon electric steel.
The merchandise subject to this order is classified in the HTSUS
under
[[Page 39300]]
subheadings: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045,
7208.51.0060, 7208.52.0000, 7208.53.000, 7208.90.000, 7210.70.3000,
7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.000,
7212.40.1000, 7212.40.5000, 7212.50.0000, 7225.40.3050, 7225.40.7000,
7225.50.6000, 7225.90.0090, 7226.91.5000, 7226.91.7000, 7226.91.8000,
7226.99.0000.
Although the HTSUS subheadings are provided for convenience and
Customs purposes, the written description of the merchandise subject to
this order is dispositive.
Analysis of Comments Received
The issues raised in the case and rebuttal briefs are addressed in
the Issues and Decision Memorandum to David M. Spooner, Assistant
Secretary for Import Administration, from Stephen J. Claeys, Deputy
Assistant Secretary for Import Administration, dated concurrently
herewith (the ``Issues and Decision Memorandum''), which is adopted
herein, by reference. Attached, as an appendix to this notice, is a
list of the comments the Department received from interested parties,
all of which are discussed in the Decision Memorandum. The Issues and
Decision Memorandum is on file in the Central Records Unit, room B-099
of the Herbert C. Hoover Building, and may be accessed on the Web at
https://ia.ita.doc.gov/frn/.
Changes Since the Preliminary Results
Based on our analysis of the comments received, the Department has
made a change from the Preliminary Results. Specifically, for these
final results, the Department has selected a dumping margin of 10.31
percent as AFA for Palini.
Adverse Facts Available
For the reasons discussed below, we determine that it is
appropriate to apply AFA toward Palini for these final results of
review.
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 (A) withholds
information requested by the Department, (B) fails to provide such
information by the deadlines for submission of the information, or in
the form or manner requested, subject to section 782 of the Act, (C)
significantly impedes a proceeding under this title, or (D) provides
information that cannot be verified as provided in section 782(i) of
the Act, the Department 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.
As discussed in more detail below, Palini did not submit the
information requested by the Department in the May 11, 2005,
questionnaire by the established deadline, leaving the Department with
no information to review or verify. Section 782(d) of the Act directs
the Department to notify a respondent when the Department finds its
response deficient. Since there was no response to the May 11, 2005,
questionnaire, there is no information for the Department to review.
Thus, section 782(d) of the Act does not apply in this case. In
addition, Palini's failure to respond to the Department's May 11, 2005,
request for information resulted in an incomplete record of review,
which could not serve as a reliable basis for the Department to reach
an applicable determination, thereby impeding this review. Thus, in
deciding these final results of review, pursuant to sections
776(a)(2)(A) and (C) of the Act, we have based Palini's dumping margin
on facts otherwise available because Palini (1) withheld information
specifically requested by the Department in the May 11, 2005,
questionnaire and (2) significantly impeded the antidumping proceeding
because the incomplete record of review cannot serve as a reliable
basis for the Department to reach an applicable determination.
In this case, although the Department provided Palini with notice
of the consequences of failure to respond adequately to the May 11,
2005, questionnaire before the applicable deadline, Palini chose not
respond to the questionnaire. See May 11, 2005, questionnaire at page
G-3. Specifically, the Department requested, in its May 11, 2005,
questionnaire, that Palini report the total quantity and value of the
merchandise under review sold during the POR in (or to) the United
States. Id. at question one. In addition, this questionnaire stated
``{i{time} f you are aware that any of the merchandise you sold to
third countries was ultimately shipped to the United States, please
contact the official in charge within two weeks of the receipt of this
questionnaire.'' Id. at question nine. As discussed below, Palini
failed to respond to question one of the Department's questionnaire
even though it had two sales that it shipped directly to the United
States during the POR. In addition, even though it had sales to a third
country, of which some portion was ultimately shipped to the United
States, Palini failed to contact the official in charge as requested by
the questionnaire.
Rather than immediately conclude that Palini was a non-cooperative
respondent, the Department, on June 6, 2005, issued a letter, pursuant
to 19 CFR 351.213(d)(3), to Palini in which the Department requested
that Palini indicate whether the reason for its failure to respond to
the May 11, 2005, questionnaire was because Palini had no shipments or
sales to the United States during the POR. In response to the June 6,
2005, letter, Palini informed the Department that ``all of our exports
to {the{time} USA were made through our Canadian customer Wirth Steel.
They purchase steel from us mainly for shipment to Windsor, Ontario and
we have no knowledge of the portion of the orders that ultimately are
delivered 'in bond' into the U.S. market.'' See Memorandum from Thomas
Martin, International Trade Compliance Analyst, to the File, ``Receipt
of Emailed, Faxed, and Mailed Communication,'' dated October 2, 2005,
at Attachment 1, which includes Palini's June 14, 2005, email. We note
that Palini made no mention in its response to the Department's June 6,
2005, letter that it shipped two of its sales directly from Italy to
the United States.
Prompted by Palini's June 14, 2005, assertion that it had no
knowledge of which sales entered the United States, the Department
requested documentation from CBP in an attempt to confirm Palini's
statements in the June 14, 2005, email. See Memorandum from Thomas
Martin, International Trade Compliance Analyst, to The File, ``Request
for U.S. Entry Documents'' dated June 29, 2005. When the Department
received information from CBP that Palini had sales shipped directly
from Italy, some portion of which were entered for consumption
[[Page 39301]]
into the U.S. market, thereby contradicting Palini's June 14, 2005,
assertion, it made several requests to CBP for more detailed
information. See Memorandum from Thomas Martin, International Trade
Compliance Analyst, to The File, ``Request for U.S. Entry Documents''
dated October 4, 2005. In the end, the Department requested and
obtained a large number of customs entries from CBP pertaining to
Palini and Wirth, and conducted analysis of these documents. See
Memoranda from Thomas Martin, International Trade Compliance Analyst,
to The File, ``U.S. Entry Summary Documents'' dated January 4, 2006,
and January 18, 2006. After analyzing the relevant documentation from
CBP, the Department sent a supplemental questionnaire to Palini to give
it an opportunity to explain the discrepancies between its June 14,
2005, email and the CBP documents demonstrating direct shipments from
Italy and consumption entries. See January 6, 2006, supplemental
questionnaire.
Palini submitted its supplemental questionnaire response on January
27, 2006. In response to the Department's request to clarify its
initial statement that it has ``no knowledge of the portion of the
orders that ultimately are delivered `in bond' into the U.S. market,''
Palini replied that ``the portion {of Palini's sales{time} that Wirth
Steel shipped to Canada, part of it was kept in bond in Canada and then
shipped later to the USA. Alternatively some of the steel delivered to
U.S. ports was kept in bond and {subsequently{time} shipped to
Canada.'' See Palini's January 27, 2006, submission at 3. Thus, Palini
clarified that it knew that some of its sales to Wirth were delivered
to U.S. ports, but that it did not know which portion of those sales
remained within the U.S. market.
Palini also stated in its supplemental response that Wirth provided
it with the destinations for each shipment and that Palini included
this information in its commercial invoices and shipping documents. Id.
at 3-4. Palini provided its commercial invoices and bills of lading for
the two sales in question, which are kept in the normal course of
business. Id. at pages 12-15, 48, and 50 of the Attachment. These
documents list U.S. destinations, thereby demonstrating that Palini had
knowledge that these two sales were shipped directly to U.S.
destinations. In the Preliminary Determination, the Department applied
the knowledge test to these facts and found that Palini had knowledge
of direct shipments to the United States of subject merchandise. See
Preliminary Determination at 71 FR at 11180. For these final results,
we continue to find that Palini had knowledge that two of its sales to
Wirth were destined for the United States. However, as discussed
concurrently in the Issues and Decision Memorandum, the Department's
knowledge test does not require Palini to know the final destination of
the subject merchandise. See Issues and Decision Memorandum at 6-7.
In sum, Palini failed to respond to the Department's May 11, 2005,
questionnaire or to request an extension of the deadline prior to the
due date for the questionnaire, as required by section 351.302(c) of
the Department's regulations. Palini did not report its two sales of
subject merchandise shipped to the United States, nor did Palini
indicate in response to the Department's June 6, 2005, letter that it
knew that two of its sales were destined for the United States. Palini
only acknowledged that two of its sales were shipped directly to the
United States after the Department informed Palini that CBP documents
contradicted its earlier assertions. The Department, therefore, finds
that Palini withheld information that the Department specifically
requested. Additionally, by not responding to the initial questionnaire
and waiting to reveal its knowledge that two of its sales were shipped
directly to the United States, Palini impeded this segment of the
proceeding by preventing the Department from issuing supplemental
questionnaires to obtain and examine its sales of subject merchandise,
and from calculating a dumping margin for Palini's sales within the
statutory time for completing this review. Therefore, the Department
has determined that it must base Palini's dumping margin on the facts
otherwise available pursuant to sections 776(a)(2)(A) and (C) of the
Act.
B. Application of Adverse Inferences for Facts Available
In selecting from among the facts otherwise available, section
776(b) of the Act authorizes the Department to use an adverse inference
if the Department finds that an interested party ``failed to cooperate
by not acting to the best of its ability to comply with a request for
information.'' The Court of Appeals for the Federal Circuit (``Federal
Circuit'') has held that the statutory mandate that a respondent act to
the ``best of its ability'' requires the respondent to do the maximum
it is able to do. See, e.g., Nippon Steel Corp. v. United States, 337
F.3d 1373, 1382 (Fed. Cir. 2003). In the instant case, Palini knew that
its two sales were destined for the United States. However, Palini
failed to report its sales of subject merchandise to the United States
or even to respond to the May 11, 2005, questionnaire. Further, Palini
did not disclose these two sales in response to the Department's June
6, 2005, letter asking Palini to inform the Department if ``it had no
shipments or sales of cut-to-length carbon quality steel plate to the
United States during the POR.'' Rather than doing the maximum it was
able to do in response to the Department's requests for information,
Palini chose to not report sales it knew had been shipped to the United
States. Therefore, the Department finds that Palini failed to cooperate
to the best of its ability in complying with the Department's requests
for information. Because Palini did not cooperate to the best of its
ability, the Department, in selecting from among the facts otherwise
available will use an inference that is adverse to the interests of
Palini. See section 776(b) of the Act.
Section 776(b) of the Act authorizes the Department to use as AFA
information derived from (1) the petition, (2) a final determination in
the investigation under this title, (3) any previous review under
section 751 or determination under section 753, or (4) any other
information on the record. Id. It is the Department's practice normally
to select as AFA the highest margin calculated in any segment of the
proceeding for any respondent. See, e.g., Notice of Final Results of
Antidumping Duty Administrative Review and Final Partial Rescission:
Certain Cut-to-Length Carbon Steel Plate from Romania, 71 FR 7008
(February 10, 2006). The CIT and the Federal Circuit have consistently
upheld Commerce's practice. See Rhone Poulenc, Inc. v. United States,
899 F.2d 1185, 1190 (Fed. Cir. 1990); see also NSK Ltd. v. United
States, 346 F. Supp. 2d 1312, 1335 (CIT 2004); see also Kompass Food
Trading Int'l v. United States, 24 CIT 678, 689 (CIT 2000); and
Shanghai Taoen Int'l Trading Co. v. United States, 360 F. Supp. 2d 1339
(CIT 2005). In this case, because there have been no administrative
reviews since the investigation and no interested party has placed
information on the record to be used as a source of the AFA rate, the
only information available from which to derive the AFA rate is
information from the investigation and the petition.
Section 776(c) of the Act requires that, where the Department
selects from among the facts otherwise available and relies on
``secondary information,'' the Department shall, to the extent
practicable, corroborate that information from independent sources
reasonably at the Department's disposal. Secondary
[[Page 39302]]
information is described in the Statement of Administrative Action as
``{i{time} nformation derived from the petition that gave rise to the
investigation or review, the final determination concerning the subject
merchandise, or any previous review under section 751 concerning the
subject merchandise.'' See Statement of Administrative Action
Accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316 at
870 (1994) (``SAA''). The SAA states that ``corroborate'' means to
determine that the information used has probative value. Id. The SAA
also states that independent sources used to corroborate such evidence
may include, for example, published price lists, official import
statistics and customs data, and information obtained from interested
parties during the particular investigation. Id; see also Notice of
Preliminary Determination of Sales at Less Than Fair Value: High and
Ultra-High Voltage Ceramic Station Post Insulators from Japan, 68 FR
35627 (June 16, 2003); Notice of Final Determination of Sales at Less
Than Fair Value: Live Swine From Canada, 70 FR 12181 (March 11, 2005).
The Department attempted to corroborate the petition rate. In the
petition, the petitioners estimated export price based on the Average
Unit Values (``AUVs'') of imports of subject merchandise from Italy
during the period of investigation (``POI'') and based normal value
(``NV'') on their own production experience. The Department examined
the AUV data for the POR and found that the AUVs for subject
merchandise have increased between the POI and POR. See Memorandum from
Thomas Martin, International Trade Compliance Analyst, ``Comparison of
Average Unit Values,'' dated July 5, 2006. Regarding NV, there is no
information on the record of this review with which to use in
corroborating the petition's NV. Therefore, the Department has found
that the information from the petition is not probative in this review.
Because the petition rate is not probative in this review, there
have been no prior administrative reviews of this order, and no
interested party has placed information on the record to be used as a
source of the AFA rate, the Department must look to information from
the investigation as the basis for the AFA rate. See section 776(b) of
the Act. The only information on the record of the investigation which
can serve as a basis for an adverse margin is Palini's own information.
The Department continues to find that using Palini's own rate from the
investigation would not be sufficiently adverse so as ``to effectuate
the purpose of the facts available role to induce respondents to
provide the Department with complete and accurate information in a
timely manner.'' See Static Random Access Memory Semiconductors from
Taiwan: Final Determination of Sales at Less Than Fair Value, 63 FR
8909, 8932 (February 32, 1998). The Department also finds that using
Palini's rate from the investigation would not prevent Palini from
obtaining a more favorable result by failing to cooperate than if it
had cooperated fully. See SAA at 870; see also D&L Supply Co. v. United
States, 113 F. 3d 1220, 1223 (Fed. Cir. 1997). The Federal Circuit
recognized in F.Lii de Cecco di Filippo Fara S. Martino S.p.A. v.
United States, 216 F.3d 1027 (Fed. Cir. 2000) (``De Cecco'') that the
AFA rate must necessarily be higher than any estimate of the
respondent's actual rate. See De Cecco, 216 F. 3d at 1032. For this
reason, the Department has chosen the highest dumping margin calculated
for any model for Palini in the LTFV investigation, 10.31 percent, as
AFA. See Memorandum from Thomas Martin, International Trade Compliance
Analyst, to the File, ``Amended Final Determination Calculation
Memorandum,'' dated July 5, 2006. This rate is reliable as it is based
on Palini's own information and is relevant to Palini's own practices
in selling CTL Plate to the United States. Therefore, given the record
evidence from the petition and from the instant review, the Department
finds that the 10.31 percent rate is the most appropriate to use as AFA
and is assigning it to Palini.
Partial Rescission of Administrative Review
Pursuant to the February 28, 2005, request made by Nucor
Corporation, a petitioner to this proceeding, the Department initiated
this review with respect to Ilva and four other producers of subject
merchandise. See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation in Part, 70 FR 14643
(March 23, 2005). The Department preliminarily intended to rescind this
review due to an assertion of no shipments by Ilva. See Preliminary
Results. However, upon review of the record of the proceeding the
Department determined that initiation of a review of Ilva was improper
because Ilva is excluded from the order due to receiving a de minimis
final margin in the less than fair value investigation. See Notice of
Amendment of Final Determinations of Sales at Less Than Fair Value and
Antidumping Duty Orders: Certain Cut-To-Length Carbon-Quality Steel
Plate Products From France, India, Indonesia, Italy, Japan and the
Republic of Korea, 65 FR 6585 (February 10, 2000). For this reason, the
Department is rescinding the review with respect to Ilva.
The Department's practice, supported by substantial precedent,
requires that there be entries during the POR upon which to assess
antidumping duties, to conduct an administrative review. See Granular
Polytetrafluoroethylene Resin from Japan: Notice of Rescission of
Antidumping Duty Administrative Review, 70 FR 44088 (August 1, 2005).
Pursuant to 19 CFR Sec. 351.213(d)(3), the Department will rescind an
administrative review in whole or only with respect to a particular
exporter or producer if it concludes that during the POR there were
``no entries, exports, or sales of the subject merchandise.'' In
response to the Department's questionnaire Metalcam and Riva Fire
informed the Department via letters dated May 24, 2005, and May 30,
2005, that they did not ship subject merchandise to the United States
during the POR. The Department corroborated these statements through
CBP entry data, which indicate that there were no entries of subject
merchandise from these companies during the POR. Since the Preliminary
Results, no party has provided the Department with any evidence that
Metalcam or Riva Fire had entries or sales during the POR. Therefore,
in accordance with 19 CFR Sec. 351.213(d)(3), the Department is
rescinding the administrative review with respect to Metalcam and Riva
Fire.
On June 13, 2005, Trametal responded to the Department's May 11,
2005, questionnaire and informed the Department that it made one sale
of subject merchandise to the United States. The Department confirmed
Trametal's claim of a single U.S. sale by reviewing CBP import data and
entry documents. Although the entry documents appear to indicate that
Trametal shipped subject merchandise in its single sale to the United
States during the POR, the importer did not enter the goods as subject
to the antidumping order, and CBP liquidated the entry under its own
authority. There is no evidence to indicate that Trametal has any
connection to this importer.
Trametal has no entries during the POR against which to collect
duties. It is the Department's practice not to conduct an
administrative review when there are no entries to be reviewed. See
Notice of Final Results of Antidumping Duty Administrative Review:
Portable Electric Typewriters from Japan, 56 FR 14072, 14073 (April 5,
1991); and Notice
[[Page 39303]]
of Proposed Rulemaking and Final Comments: Antidumping Duties;
Countervailing Duties, 61 FR 7308, 7318 (February 27, 1996).
Liquidation of entries is final for all parties unless protested within
the prescribed period. See 19 U.S.C. Sec. 1514(a)(5). Because the
liquidation of Trametal's entry is final, the Department cannot assess
antidumping duties against that entry pursuant to the final results of
this administrative review. Since the Preliminary Results, no party has
provided the Department with any evidence that Trametal had additional
entries or sales during the POR, or that the liquidation has been
protested. Therefore, the Department is rescinding the review with
respect to Trametal, pursuant to 19 CFR Sec. 351.213(d)(3).
Final Results of Review
As a result of this review, the Department determines that the
following weighted-average dumping margin exists for the period
February 1, 2004, through January 31, 2005:
------------------------------------------------------------------------
Margin
Manufacturer/Exporter (percent)
------------------------------------------------------------------------
Palini and Bertoli S.p.A.................................... 10.31
------------------------------------------------------------------------
Assessment
The Department has determined, and CBP shall assess, antidumping
duties on all appropriate entries, pursuant to 19 CFR Sec. 351.212(b).
The Department calculates importer-specific duty assessment rates on
the basis of the ratio of the total amount of antidumping duties
calculated for the examined sales to the total entered value of the
examined sales. Where an importer-specific assessment rate is above de
minimis, the Department will instruct CBP to assess the importer-
specific rate uniformly on the entered value of all entries of subject
merchandise by that importer.
The Department clarified its ``automatic assessment'' regulation on
May 6, 2003. See Antidumping and Countervailing Duty Proceedings:
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003)
(``Assessment Clarification''). This clarification will apply to
entries of subject merchandise during the POR produced by companies
included in these final results of review for which the reviewed
companies did not know their merchandise was destined for the United
States. In such instances, the Department will instruct CBP to
liquidate unreviewed entries at the all-others rate if there is no rate
for the intermediate company(ies) involved in the transaction. For a
full discussion of this clarification, see Assessment Clarification.
In the instant review, the record evidence demonstrates that Palini
had knowledge that two of its sales were destined for the United States
because Palini's commercial invoices and bills of lading identify U.S.
destinations. Record evidence also indicates that Palini had no
knowledge of U.S. destinations for its remaining sales because these
sales were destined for Canada where Wirth then decided which sales, or
which portion of a particular sale, would remain in Canada or would be
exported to the United States. Further, the Department notes that Wirth
does not have its own cash deposit rate in the proceeding. Pursuant to
the Department's cash deposit hierarchy, Wirth appropriately entered
its sales under the CBP case number for Palini. Therefore, in
accordance with our Assessment Clarification, entries of subject
merchandise during the POR produced by Palini and delivered by Wirth to
the United States without Palini's knowledge will be liquidated at the
all-others rate in effect on the date of entry, 7.85 percent, as Palini
had no knowledge that these sales were destined for the United States.
Given the entry-specific information on the record of this review, the
Department will identify to CBP entries of subject merchandise from the
two shipments for which Palini had knowledge of U.S. destinations, and
will instruct CBP to liquidate those entries at the AFA rate of 10.31
percent. The Department will issue appropriate assessment instructions
directly to CBP within 15 days of publication of the final results of
review.
In addition, the Department has rescinded the review with respect
to Metalcam, Riva Fire, and Trametal due to no shipments made by these
producers. Metalcam, Riva Fire, and Trametal have never participated in
any segment of this proceeding, and for this reason, do not have their
own CBP case numbers. Therefore, entries of subject merchandise
produced by Metalcam, Riva Fira, and Trametal made during the POR
through intermediaries will be liquidated at the all-others rate in
effect on the date of entry.
Cash Deposits
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of the
final results of this administrative review, as provided by section
751(a)(1) of the Act. In this case (1) the cash-deposit rate for Palini
will be the rate established in the final results of this review; (2)
for previously investigated or reviewed companies not listed above, the
cash deposit rate will continue to be the company-specific rate
published for the most recent period; (3) if the exporter is not a firm
covered in this review, a prior review, or the less-than-fair-value
(``LTFV'') investigation, but the manufacturer is, the cash deposit
rate will be the rate established for the most recent period for the
manufacturer of the subject merchandise; and (4) if neither the
exporter nor the manufacturer is a firm covered in this or any previous
review conducted by the Department, the cash-deposit rate will be 7.85
percent, the all-others rate established in the LTFV investigation.
These cash deposit rates, when imposed, shall remain in effect until
publication of the final results of the next administrative review. See
section 751(a)(2)(C) of the Act.
Notification to Parties
This notice serves as a final reminder to importers of their
responsibility under 19 CFR Sec. 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of the antidumping duties occurred and the concomitant
assessment of double antidumping duties. This notice is also the only
reminder to parties subject to the administrative protective order
(``APO'') of their responsibility concerning the return or destruction
of proprietary information disclosed under APO in accordance with 19
CFR Sec. 351.305. Timely written notification of the return/
destruction of APO materials or conversion to judicial protective order
is hereby requested. Failure to comply with the regulations and the
terms of an APO is a sanctionable violation.
The Department is publishing this notice in accordance with
sections 751(a)(1) and 777(i)(1) of the Act.
Dated: July 5, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6-10952 Filed 7-11-06; 8:45 am]
BILLING CODE 3510-DS-S
