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]

Download as PDF Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Notices 39299 Name Country Last known address Parrlab Technical Solutions, Ltd ...... Hong Kong Special Administrative Region. Hong Kong Special Administrative Region. Pakistan ......................................... Russia ............................................ Russia ........................................... Russia ............................................ Yemen ........................................... United Arab Emirates .................... 1204, 12F Shanghai Industrial Building, 48–62 Hennesey Road, Wan Chai. Room 23, 2/F, Kowloon Bay Ind Center, No. 15 Wany Hoi Rd, Kowloon Bay. House 184, Street 36, Sector F–10/1, Islamabad. 13/2 Begovaya Street, Moscow. 20B Berezhkovskaya Naberezhnaya, Moscow. 47–A Sovetskaya Street, Pskov, Russia Federation, 180000. Hadda Street, Sanaa. Sheikh Zayed Road, P.O. Box 17951, Jebel Ali Free Zone, Dubai, and Dubai International Airport, Dubai, 3365. P.O. Box 86343, Dubai. T.Z.H. International Co. Ltd ............. Design Engineering Center ............. Kantry ............................................... Etalon Company .............................. Pskovenergo Service ....................... Sheeba Import Export ...................... Aerospace Consumerist Consortium FZCO. Medline International LLC ................ United Arab Emirates .................... [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. sroberts on PROD1PC70 with NOTICES AGENCY: VerDate Aug<31>2005 18:23 Jul 11, 2006 Jkt 208001 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, PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 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 E:\FR\FM\12JYN1.SGM 12JYN1 39300 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Notices 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 http:// ia.ita.doc.gov/frn/index.html. 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. sroberts on PROD1PC70 with NOTICES 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 VerDate Aug<31>2005 18:23 Jul 11, 2006 Jkt 208001 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, PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 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 E:\FR\FM\12JYN1.SGM 12JYN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Notices 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. VerDate Aug<31>2005 18:23 Jul 11, 2006 Jkt 208001 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 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 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 E:\FR\FM\12JYN1.SGM 12JYN1 sroberts on PROD1PC70 with NOTICES 39302 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Notices 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 VerDate Aug<31>2005 18:23 Jul 11, 2006 Jkt 208001 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 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 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 E:\FR\FM\12JYN1.SGM 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 Jkt 208001 PO 00000 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 E:\FR\FM\12JYN1.SGM 12JYN1

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 
http://ia.ita.doc.gov/frn/index.html.

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