Certain Steel Nails From the United Arab Emirates: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 68129-68137 [2011-28542]
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Federal Register / Vol. 76, No. 213 / Thursday, November 3, 2011 / Notices
the Department to issue its preliminary
results in an administrative review of an
antidumping duty order within 245
days after the last day of the anniversary
month of the order for which the
administrative review was requested.
However, if the Department determines
that it is not practicable to complete the
review within the aforementioned
specified time limits, section
751(a)(3)(A) of the Act and 19 CFR
351.213(h)(2) allow the Department to
extend the time limit for the preliminary
results to a maximum of 365 days after
the last day of the anniversary month.
Pursuant to section 751(a)(3)(A) of the
Act and 19 CFR 351.213(h)(2), the
Department determines that it is not
practicable to complete the preliminary
results for the remaining companies
covered by this review within the
current time limit. Specifically, the
Department requires additional time to
analyze supplemental questionnaire
responses, and to evaluate the most
appropriate surrogate values to use in
this segment of the proceeding.
Therefore, in accordance with section
751(a)(3)(A) of the Act, the Department
has decided to extend the time limit for
the preliminary results from 345 days to
365 days. The preliminary results for
the remaining seven companies will
now be due no later than November 30,
2011. Unless extended, the final results
continue to be due no later than 120
days after the publication of the
preliminary results, pursuant to section
751(a)(3)(A) of the Act and 19 CFR
351.213(h)(1).
This notice is issued and published in
accordance with sections 751(a)(3)(A)
and 777(i)(1) of the Act.
Dated: October 28, 2011.
Christian Marsh,
Deputy Assistant Secretary for Antidumping
and Countervailing Duty Operations.
[FR Doc. 2011–28535 Filed 11–2–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
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[A–520–804]
Certain Steel Nails From the United
Arab Emirates: Preliminary
Determination of Sales at Less Than
Fair Value and Postponement of Final
Determination
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (the Department)
preliminarily determines that certain
AGENCY:
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steel nails (nails) from the United Arab
Emirates (UAE) are being, or are likely
to be, sold in the United States at less
than fair value (LTFV) as provided in
section 733(b) of the Tariff Act of 1930,
as amended (the Act). The estimated
margins of sales at LTFV are listed in
the ‘‘Suspension of Liquidation’’ section
of this notice. Interested parties are
invited to comment on this preliminary
determination.
DATES: Effective Date: November 3,
2011.
FOR FURTHER INFORMATION CONTACT:
Dmitry Vladimirov or Michael A.
Romani, AD/CVD Operations, Office 1,
Import Administration, International
Trade Administration, U.S. Department
of Commerce, 14th Street and
Constitution Avenue NW., Washington,
DC 20230; telephone (202) 482–0665
and (202) 482–0198, respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 31, 2011, Mid Continent
Nail Corporation (the petitioner) filed an
antidumping petition concerning
imports of nails from the UAE. See the
Petition for the Imposition of
Antidumping Duties on Certain Steel
Nails from the United Arab Emirates,
dated March 31, 2011 (the petition).
On April 27, 2011, the Department
initiated the antidumping duty
investigation on nails from the UAE. See
Certain Steel Nails From the United
Arab Emirates: Initiation of
Antidumping Duty Investigation, 76 FR
23559 (April 27, 2011) (Initiation
Notice).
The Department set aside a period of
time for parties to raise issues regarding
product coverage and encouraged all
parties to submit comments within 20
calendar days of the date of publication
of the Initiation Notice. See Initiation
Notice, 76 FR at 23560. We received no
comments from interested parties
concerning product coverage. The
Department also set aside a period of
time for parties to comment on product
characteristics for use in the
antidumping duty questionnaire. See
Initiation Notice, 76 FR at 23560. On
May 10, 2011, we received comments
from the petitioner. On May 17, 2011,
we received comments from Precision
Fasteners LLC (Precision Fasteners), a
UAE producer and exporter of subject
merchandise. On May 24, 2011, we
received additional comments from the
petitioner. After reviewing all
comments, we have adopted the
characteristics and hierarchy as
explained in the ‘‘Product
Comparisons’’ section of this notice,
below.
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68129
On May 19, 2011, we selected Dubai
Wire FZE (Dubai Wire), Precision
Fasteners, and Tech Fast International
Ltd. (Tech Fast), as mandatory
respondents in this investigation. See
the ‘‘Selection of Respondents’’ section
of this notice, below.
On May 20, 2011, the International
Trade Commission (ITC) published its
affirmative preliminary determination
that there is a reasonable indication that
imports of nails from the UAE are
materially injuring the U.S. industry,
and the ITC notified the Department of
its finding. See Certain Steel Nails From
the United Arab Emirates;
Determination, Investigation No. 731–
TA–1185 (Preliminary), 76 FR 29266
(May 20, 2011).
On May 26, 2011, we issued the
antidumping questionnaire to Dubai
Wire, Precision Fasteners, and Tech
Fast. We received questionnaire
responses from Dubai Wire and
Precision Fasteners. We did not receive
a questionnaire response from Tech
Fast.
On July 20, 2011, based on a timely
request from the petitioner, we extended
the deadline for alleging targeted
dumping.
On August 8, 2011, the petitioner
filed allegations of targeted dumping by
Dubai Wire and Precision Fasteners. See
the ‘‘Allegation of Targeted Dumping’’
section below.
On August 8, 2011, the petitioner
requested that the Department postpone
its preliminary determination by 50
days. In accordance with section
733(c)(1)(A) of the Act, we postponed
our preliminary determination by 50
days. See Certain Steel Nails From the
United Arab Emirates: Postponement of
Preliminary Determination of
Antidumping Duty Investigation, 76 FR
52313 (August 22, 2011).
On October 4, 2011, Dubai Wire and
Precision Fasteners requested that, in
the event of an affirmative preliminary
determination in this investigation, the
Department postpone its final
determination by 60 days in accordance
with section 735(a)(2)(A) of the Act and
19 CFR 351.210(b)(2)(ii) and extend the
application of the provisional measures
prescribed under 19 CFR 351.210(e)(2)
from a four-month to a six-month
period.
On October 13, 2011, the petitioner
submitted comments with respect to
Dubai Wire and Precision Fasteners for
consideration in the preliminary
determination. On October 18, 2011,
Dubai Wire submitted rebuttal
comments. On October 21, 2011,
Precision Fasteners submitted rebuttal
comments. On October 24, 2011, the
petitioner submitted additional
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comments with respect to Dubai Wire.
On October 25, 2011, Precision
Fasteners submitted additional
comments concerning targeted dumping
allegation.
Period of Investigation
The POI is January 1, 2010, through
December 31, 2010. This period
corresponds to the four most recent
fiscal quarters prior to the month of the
filing of the petition, March 2011. See
19 CFR 351.204(b)(1).
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Scope of Investigation
The products covered by this
investigation are nails from the UAE.
For a full description of the scope of the
investigation, as set forth in the
Initiation Notice, please see the ‘‘Scope
of the Investigation’’ in Appendix I of
this notice.
Changes to the Scope of Investigation
For this preliminary determination we
are clarifying the scope of investigation
to conform with the decision in Certain
Steel Nails From the People’s Republic
of China: Initiation and Preliminary
Results of Antidumping Duty Changed
Circumstances Review, 76 FR 22369
(April 21, 2011) (China Nails CCR)
(unchanged in Certain Steel Nails From
the People’s Republic of China: Final
Results of Antidumping Duty Changed
Circumstances Review, 76 FR 30101
(May 24, 2011)). The scope description
in the Initiation Notice included
language referring to the packaging
characteristics of certain nails excluded
from the scope. However, in China Nails
CCR, we determined that the physical
characteristics of the nails, and not the
labeling, were determinative of their
inclusion or exclusion from the scope.
See China Nails CCR, 76 FR 22371.
Accordingly, we are revising the scope
of this investigation by removing the
following language pertaining to three
types of roofing nails that are excluded
from the scope of the investigation,
‘‘and whose packaging and packaging
marking are clearly and prominently
labeled ‘Roofing’ or ‘Roof’ nails.’’ See
Appendix II of this notice.
Additionally, for the preliminary
determination, we are modifying the
scope of the investigation to reflect the
ASTM Standard F 1667 (2011 revision)
rather than the 2005 revision because
the 2011 revision describes additional
types of roofing nails not provided for
in the 2005 revision. Accordingly, for
this preliminary determination, we have
adopted the following revision to the
scope language, ‘‘Excluded from the
scope of this investigation are steel nails
specifically enumerated and identified
in ASTM Standard F 1667 (2011
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revision) as Type I, Style 20 nails,
whether collated or in bulk, and
whether or not galvanized.’’ See
Appendix II.
We invite interested parties to
comment on these modifications to the
scope of this investigation.
Use of Facts Otherwise Available
Selection of Respondents
As indicated in the ‘‘Background’’
section above, Tech Fast did not
respond to our questionnaire dated May
26, 2011. See memorandum dated
October 18, 2011 (documenting our
attempts to deliver the questionnaire to
Tech Fast). As such, Tech Fast withheld
information necessary to calculate a
margin for its sales to the United States.
Section 776(a)(2) of the Act provides
that, if an interested party withholds
information requested by the
administering authority, fails to provide
such information by the deadlines for
submission of the information or in the
form and manner requested, subject to
subsections (c)(1) and (e) of section 782,
significantly impedes a proceeding
under this title, or provides such
information but the information cannot
be verified as provided in section 782(i)
of the Act, the administering authority
shall use, subject to section 782(d) of the
Act, facts otherwise available in
reaching the applicable determination.
Section 782(e) of the Act states further
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; (5) the
information can be used without undue
difficulties.
In this case, Tech Fast did not
respond to our request for information,
withheld information the Department
requested, and significantly impeded
the proceeding. Because Tech Fast
failed to provide any information,
section 782(e) of the Act is inapplicable.
Accordingly, pursuant to section 776(a)
of the Act, we are relying upon facts
otherwise available for Tech Fast’s
antidumping duty margin.
Section 777A(c)(1) of the Act directs
the Department to calculate individual
dumping margins for each known
exporter and producer of the subject
merchandise. Section 777A(c)(2) of the
Act gives the Department discretion,
when faced with a large number of
exporters or producers, to limit its
examination to a reasonable number of
such companies if it is not practicable
to examine all companies. The data on
the record indicates that there are over
10 potential producers or exporters from
the UAE that exported the subject
merchandise to the United States during
the POI. See letter to all interested
parties dated May 2, 2011. In the
Initiation Notice we stated that we
intended to select respondents based on
U.S. Customs and Border Protection
(CBP) data for U.S. imports under the
Harmonized Tariff Schedule of the
United States (HTSUS) numbers
7317.00.55, 7317.00.65, and 7317.00.75,
the three categories most specific to
subject merchandise, for entries made
during the POI. See Initiation Notice, 76
FR 23563. We invited comments on CBP
data and selection of respondents for
individual examination. Id.
On May 2, 2011, we released the CBP
data to all parties with access to
information protected by administrative
protective order. Based on our review of
the CBP data and our consideration of
the comments we received from Dubai
Wire on May 5, 2011, and from the
petitioner on May 9, 2011, we
determined that we had the resources to
examine three companies. Accordingly,
we selected Dubai Wire, Precision
Fasteners, and Tech Fast 1 for individual
examination in this investigation. These
companies are the three producers/
exporters of subject merchandise that
account for the largest volume of the
subject merchandise imported during
the POI that we can reasonably examine
in accordance with section
777A(c)(2)(B) of the Act. See
Memorandum to Christian Marsh
entitled ‘‘Certain Steel Nails from the
United Arab Emirates: Selection of
Respondents for Individual
Examination’’ dated May 19, 2011.
1 Selected respondents are listed in alphabetical
order.
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For the reasons discussed below, we
determine that the use of facts otherwise
available with an adverse inference is
appropriate for the preliminary
determination with respect to Tech Fast.
A. Use of Facts Available
B. Application of Adverse Inferences for
Facts Available
Section 776(b) of the Act provides
that, if the Department finds that an
interested party has failed to cooperate
by not acting to the best of its ability to
comply with a request for information,
the Department may use an inference
adverse to the interests of that party in
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selecting the facts otherwise available.
See Notice of Final Results of
Antidumping Duty Administrative
Review: Stainless Steel Bar from India,
70 FR 54023, 54025–26 (September 13,
2005), and Notice of Final
Determination of Sales at Less Than
Fair Value and Final Negative Critical
Circumstances: Carbon and Certain
Alloy Steel Wire Rod from Brazil, 67 FR
55792, 55794–96 (August 30, 2002). In
addition, the Statement of
Administrative Action accompanying
the Uruguay Round Agreements Act,
H.R. Rep. 103–316, Vol. 1, 103d Cong.
(1994) (SAA), explains that the
Department may employ an adverse
inference ‘‘to ensure that the party does
not obtain a more favorable result by
failing to cooperate than if it had
cooperated fully.’’ See SAA at 870; and,
e.g., Certain Polyester Staple Fiber from
Korea: Final Results of the 2005–2006
Antidumping Duty Administrative
Review, 72 FR 69663 (December 10,
2007). Furthermore, affirmative
evidence of bad faith on the part of a
respondent is not required before the
Department may make an adverse
inference. See, e.g., Notice of Final
Determination of Sales at Less Than
Fair Value: Circular Seamless Stainless
Steel Hollow Products From Japan, 65
FR 42985 (July 12, 2000); Antidumping
Duties, Countervailing Duties, 62 FR
27296, 27340 (May 19, 1997); and
Nippon Steel Corp. v. United States, 337
F.3d 1373, 1382–83 (CAFC 2003). It is
the Department’s practice to consider, in
employing adverse inferences, the
extent to which a party may benefit
from its own lack of cooperation.
Although we provided Tech Fast with
notice informing it of the consequences
of its failure to respond fully to our
antidumping questionnaire, Tech Fast
refrained from participating in this
investigation and has failed to provide
any response to our request for
information. This failure to respond
indicates that Tech Fast has determined
not to cooperate with our requests for
information or to participate in this
investigation. Tech Fast’s decision not
to participate in this investigation has
precluded the Department from
performing the necessary analysis and
verification of Tech Fast’s questionnaire
responses required by section 782(i)(1)
of the Act. Accordingly, the Department
concludes that Tech Fast failed to
cooperate to the best of its ability to
comply with a request for information
by the Department pursuant to section
776(b) of the Act.
Based on the above, the Department
has preliminarily determined that Tech
Fast has failed to cooperate to the best
of its ability and, therefore, in selecting
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from among the facts otherwise
available, an adverse inference is
warranted. See, e.g., Notice of Final
Determination of Sales at Less Than
Fair Value: Circular Seamless Stainless
Steel Hollow Products From Japan, 65
FR at 42986 (July 12, 2000) (where the
Department applied total adverse facts
available (AFA) where the respondent
failed to respond to the antidumping
questionnaire).
C. Selection and Corroboration of
Information Used as Facts Available
Where the Department applies AFA
because a respondent failed to cooperate
by not acting to the best of its ability to
comply with a request for information,
section 776(b) of the Act authorizes the
Department to rely on information
derived from the petition, a final
determination, a previous
administrative review, or other
information placed on the record. See
also 19 CFR 351.308(c) and the SAA at
868–870. In selecting a rate for AFA, the
Department selects a rate that is
sufficiently adverse to ensure that the
uncooperative party does not obtain a
more favorable result by failing to
cooperate than if it had fully
cooperated. Normally, it is the
Department’s practice to use the highest
rate from the petition in an investigation
when a respondent fails to act to the
best of its ability to provide the
necessary information. See, e.g., Notice
of Preliminary Determination of Sales at
Less Than Fair Value and Postponement
of Final Determination: Purified
Carboxymethylcellulose From Finland,
69 FR 77216 (December 27, 2004)
(unchanged in Notice of Final
Determination of Sales at Less Than
Fair Value: Purified
Carboxymethylcellulose From Finland,
70 FR 28279 (May 17, 2005)). The rates
in the petition range from 61.54 percent
to 184.41 percent. See Initiation Notice
at 23563. Because the rates we
preliminarily determined for
cooperative respondents, Dubai Wire
and Precision Fasteners, are 27.02 and
18.09, respectively, we have selected the
petition rate of 61.54 percent. This rate
achieves the purpose of applying an
adverse inference, i.e., it is sufficiently
adverse to ensure that the uncooperative
party does not obtain a more favorable
result by failing to cooperate than if it
had fully cooperated. See Gallant Ocean
(Thailand) Co. v. United States, 602
F.3d 1319 (Fed. Cir. 2010).
When using facts otherwise available,
section 776(c) of the the Act provides
that, where the Department relies on
secondary information (such as the
petition) rather than information
obtained in the course of an
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68131
investigation, it must corroborate, to the
extent practicable, information from
independent sources that are reasonably
at its disposal. The SAA clarifies that
‘‘corroborate’’ means the Department
will satisfy itself that the secondary
information to be used has probative
value. See SAA at 870. As stated in
Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, From
Japan, and Tapered Roller Bearings,
Four Inches or Less in Outside
Diameter, and Components Thereof,
From Japan; Preliminary Results of
Antidumping Duty Administrative
Reviews and Partial Termination of
Administrative Reviews, 61 FR 57391,
57392 (November 6, 1996) (unchanged
in Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, From
Japan, and Tapered Roller Bearings,
Four Inches or Less in Outside
Diameter, and Components Thereof,
From Japan; Final Results of
Antidumping Duty Administrative
Reviews and Termination in Part, 62 FR
11825, 11843 (March 13, 1997)), to
corroborate secondary information, the
Department will examine, to the extent
practicable, the reliability and relevance
of the information used. The
Department’s regulations state that
independent sources used to corroborate
such evidence may include, for
example, published price lists, official
import statistics and customs data, and
information obtained from interested
parties during the particular
investigation. See 19 CFR 351.308(d)
and the SAA at 870.
For the purposes of this investigation
and to the extent appropriate
information was available, we reviewed
the adequacy and accuracy of the
information in the petition during our
pre-initiation analysis and for purposes
of this preliminary determination. See
Antidumping Investigation Initiation
Checklist dated April 20, 2011
(Initiation Checklist), at 5 through 14.
See also Initiation Notice at 23561–
23563. We examined evidence
supporting the calculations in the
petition to determine the probative
value of the margins alleged in the
petition for use as AFA for purposes of
this preliminary determination. During
our pre-initiation analysis we examined
the key elements of the Export Price
(EP) and normal-value calculations used
in the petition to derive margins. During
our pre-initiation analysis we also
examined information from various
independent sources provided either in
the petition or in supplements to the
petition that corroborates key elements
of the EP and normal-value calculations
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used in the petition to derive estimated
margins. Id.
Based on our examination of the
information, as discussed in detail in
the Initiation Checklist and the
Initiation Notice, we consider the
petitioner’s calculation of the EP and
normal-value to be reliable. Therefore,
because we confirmed the accuracy and
validity of the information underlying
the calculation of margins in the
petition by examining source
documents as well as publicly available
information, we preliminarily determine
that the margins in the petition are
reliable for the purposes of this
investigation.
With respect to the relevance aspect
of corroboration, the Department will
consider information reasonably at its
disposal as to whether there are
circumstances that would render a
margin not relevant. Where
circumstances indicate that the selected
margin is not appropriate as AFA, the
Department will disregard the margin
and determine an appropriate margin.
See Fresh Cut Flowers From Mexico;
Final Results of Antidumping Duty
Administrative Review, 61 FR 6812,
6814 (February 22, 1996) (the
Department disregarded the highest
dumping margin as best information
available because the margin was based
on another company’s uncharacteristic
business expense resulting in an
unusually high margin).
The rates in the petition reflect
commercial practices of the nails
industry and, as such, are relevant to
Tech Fast. The courts have
acknowledged that the consideration of
the commercial behavior inherent in the
industry is important in determining the
relevance of the selected AFA rate to the
uncooperative respondent by virtue of it
belonging to the same industry. See,
e.g., Ferro Union, Inc. v. United States,
44 F. Supp. 2d 1310, 1334 (1999). Such
consideration typically encompasses the
commercial behavior of other
respondents under investigation and the
selected AFA rate is gauged against the
margins we calculate for those
respondents. Therefore, we compared
the model-specific margins we
calculated for Dubai Wire and Precision
Fasteners for the POI to the petition rate
of 61.54 percent, selected as AFA in this
investigation. We found that the highest
model-specific margins we calculated
for Dubai Wire and Precision Fasteners
in this investigation were higher than or
within the range of the 61.54 percent
margin alleged in the petition.
Specifically, after calculating the
margin for Dubai Wire and Precision
Fasteners as discussed in detail below,
we examined individual model
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comparisons made by Dubai Wire and
Precision Fasteners during the POI and
the margins we determined on those
model comparisons in order to
determine whether the rate of 61.54
percent is probative. We found a
number of model comparisons with
dumping margins above the rate of
61.54 percent and a number of model
comparisons with dumping margins
within the range of 61.54 percent. See
company-specific analysis
memorandum, dated concurrently with
this notice. Accordingly, the AFA rate is
relevant as applied to Tech Fast for this
investigation because it falls within the
range of model-specific margins we
calculated for Dubai Wire and Precision
Fasteners in this investigation. A similar
corroboration methodology has been
upheld by the court. See PAM, S.p.A. v.
United States, 582 F.3d 1336, 1340 (Fed.
Cir. 2009). Further, it is consistent with
our past practice. See Narrow Woven
Ribbons With Woven Selvedge From the
People’s Republic of China: Final
Determination of Sales at Less Than
Fair Value, 75 FR 41808, 41811 (July 19,
2010).
Accordingly, by using information
that was corroborated in the preinitiation stage of this investigation and
preliminarily determining it to be
relevant for the uncooperative
respondent in this investigation, we
have corroborated the AFA rate of 61.54
percent ‘‘to the extent practicable’’ as
provided in section 776(c) of the Act.
See also 19 CFR 351.308(d).
Therefore, with respect to Tech Fast,
we have used, as AFA, the margin in the
petition of 61.54 percent, as set forth in
the notice of initiation. See Initiation
Notice at 23563.
Affiliation and Collapsing
Section 771(33)(F) of the Act defines
affiliated persons as two or more
persons directly or indirectly
controlling, controlled by, or under
common control with any person. We
find that, based on record evidence,
Dubai Wire and Global Fasteners
Limited (GFL), a producer of screws, are
affiliated pursuant to section 771(33)(F)
of the Act. Because our analysis of
affiliation involves extensive use of
business-proprietary information, for a
detailed discussion, see Memorandum
to Susan Kuhbach entitled ‘‘Certain
Steel Nails from the United Arab
Emirates—Whether Collapsing of
Affiliated Producers is Warranted,’’
dated October 27, 2011 (Collapsing
Evaluation Memo).
Section 351.401(f) of the Department’s
regulations outlines the criteria for
collapsing (i.e., treating as a single
entity) affiliated producers for purposes
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of calculating a dumping margin. The
regulations state that we will treat two
or more affiliated producers as a single
entity where (1) those producers have
production facilities for similar or
identical products that would not
require substantial retooling of either
facility in order to restructure
manufacturing priorities and (2) we
conclude that there is a significant
potential for the manipulation of price
or production. In identifying a
significant potential for the
manipulation of price or production, the
Department may consider the following
factors: (i) The level of common
ownership; (ii) the extent to which
managerial employees or board
members of one firm sit on the board of
directors of an affiliated firm; (iii)
whether operations are intertwined,
such as through the sharing of sales
information, involvement in production
and pricing decisions, the sharing of
facilities or employees, or significant
transactions between the affiliated
producers. See 19 CFR 351.401(f)(2).
With respect to the first criterion of 19
CFR 351.401(f), the information on the
record indicates that GFL does not
produce and/or have the potential to
produce merchandise identical or
similar to subject merchandise.
Specifically, in producing screws, GFL’s
production processes and equipment are
not similar to those used by Dubai Wire
to produce nails. Thus, we find that
substantial retooling of GFL’s facilities
would be required to change the
companies’ manufacturing priorities.
See Collapsing Evaluation Memo.
Because the first criteria of 19 CFR
351.401(f) was not established, we need
not consider whether there is a
significant potential for the
manipulation of price or production.
With respect to Precision Fasteners,
we find that, based on record evidence,
it is not affiliated with Millennium Steel
and Wire LLC. Because our analysis of
affiliation involves extensive use of
business-proprietary information, for a
full discussion, see Precision Fasteners
analysis memorandum.
Allegation of Targeted Dumping
The statute allows the Department to
employ the average-to-transaction
margin-calculation methodology under
the following circumstances: (1) There
is a pattern of export prices that differ
significantly among purchasers, regions,
or periods of time; (2) the Department
explains why such differences cannot be
taken into account using the average-toaverage or transaction-to-transaction
methodology. See section 777A(d)(1)(B)
of the Act.
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On August 8, 2011, the petitioner
submitted allegations of targeted
dumping with respect to Dubai Wire
and Precision Fasteners, asserting that
the Department should apply the
average-to-transaction methodology to
all reported U.S. sales in calculating the
margins for these companies. In its
allegations, the petitioner asserts that
there are patterns of EPs for comparable
merchandise that differ significantly
among purchasers, regions, and periods
of time. The petitioner relied on the
Department’s current version of the
targeted-dumping test first introduced
in Certain Steel Nails from the United
Arab Emirates: Notice of Final
Determination of Sales at Not Less Than
Fair Value, 73 FR 33985 (June 16, 2008)
(Nails), and used more recently in
Certain Oil Country Tubular Goods from
the People’s Republic of China: Final
Determination of Sales at Less Than
Fair Value, Affirmative Final
Determination of Critical Circumstances
and Final Determination of Targeted
Dumping, 75 FR 20335 (April 19, 2010)
(OCTG).
Because our analysis includes
business-proprietary information, for a
full discussion see Memorandum to
Christian Marsh entitled ‘‘Less-ThanFair-Value Investigation on Certain Steel
Nails from the United Arab Emirates:
Targeted Dumping—Dubai Wire FZE,’’
dated October 27, 2011, and
Memorandum to Christian Marsh
entitled ‘‘Less-Than-Fair-Value
Investigation on Certain Steel Nails from
the United Arab Emirates: Targeted
Dumping—Precision Fasteners, LLC’’
dated October 27, 2011 (TargetedDumping Memos).
srobinson on DSK4SPTVN1PROD with NOTICES
A. Targeted-Dumping Test
We conducted customer, region, and
time-period analyses of targeted
dumping for both companies using the
methodology we adopted in Nails as
modified in Bags,2 to correct a
ministerial error, and as further
modified in Wood Flooring,3 to correct
for additional ministerial errors.
The methodology we employed
involves a two-stage test; the first stage
addresses the pattern requirement and
2 See Polyethylene Retail Carrier Bags From
Taiwan: Preliminary Determination of Sales at Less
Than Fair Value and Postponement of Final
Determination, 74 FR 55183 (October 27, 2009) (test
unchanged in Polyethylene Retail Carrier Bags from
Taiwan: Final Determination of Sales at Less Than
Fair Value, 75 FR 14569 (March 26, 2010)) (Bags).
3 See Multilayered Wood Flooring from the
People’s Republic of China: Final Determination of
Sales at Less Than Fair Value, 76 FR 64318
(October 18, 2011) (Wood Flooring) and
accompanying Issues and Decision Memorandum at
Comment 4. See also Targeted-Dumping Memos for
more detail.
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the second stage addresses the
significant-difference requirement. See
section 777A(d)(1)(B)(i) of the Act and
Nails. In this test we made all price
comparisons on the basis of identical
merchandise (i.e., by control number or
CONNUM). The test procedures are the
same for the customer, regional, and
time-period allegations of targeted
dumping. We based all of our targeteddumping calculations on the U.S. net
price which we determined for U.S.
sales by Dubai Wire and Precision
Fasteners in our standard margin
calculations. For further discussion of
the test and the results, see the
Targeted-Dumping Memos.
As a result of our analysis, we
preliminarily determine that there is a
pattern of EPs for comparable
merchandise that differ significantly
among certain customers, regions, and
time periods for Dubai Wire and
Precision Fasteners in accordance with
section 777A(d)(1)(B)(i) of the Act and
our practice as discussed in Nails.
Dubai Wire submitted comments
arguing that there was no targeted
dumping. Dubai Wire’s comments were
filed a short period of time prior to the
preliminary determination and were
complex and extensive in nature.
Accordingly, there has been insufficient
time for interested parties to comment
and for us to analyze the comments
fully. We will consider Dubai Wire’s
comments in the context of the final
determination.
B. Price Comparison Method
Section 777A(d)(1)(B)(ii) of the Act
states that the Department may compare
the weighted average of the normal
value to EPs or constructed export
prices (CEPs) of individual transactions
for comparable merchandise if the
Department explains why differences in
the patterns of EPs and CEPs cannot be
taken into account using the average-toaverage methodology. As described
above, we have preliminarily
determined that, with respect to sales by
Dubai Wire and Precision Fasteners
applicable to certain customers, regions,
and time periods, there was a pattern of
prices that differ significantly. We find,
however, that these differences can be
taken into account using the average-toaverage methodology because the
average-to-average methodology does
not mask differences in the patterns of
prices between the targeted and nontargeted groups by averaging low-priced
sales to the targeted group with highpriced sales to the non-targeted group.
See Section 777A(d)(1) of the Act.
Therefore, for the preliminary
determination, we find that the standard
average-to-average methodology takes
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into account the price differences
because the alternative average-totransaction methodology yields a
difference in the margin that is not
meaningful relative to the size of the
resulting margin. See SAA, H.R. Doc.
103–316, vol. 1 (1994), at 843.
Accordingly, for this preliminary
determination we have applied the
standard average-to-average
methodology to all U.S. sales. See
Certain Coated Paper Suitable for HighQuality Print Graphics Using Sheet-Fed
Presses From Indonesia: Preliminary
Determination of Sales at Less Than
Fair Value and Postponement of Final
Determination, 75 FR 24885, 24888
(May 6, 2010) and Polyethylene Retail
Carrier Bags From Indonesia: Final
Determination of Sales at Less Than
Fair Value, 75 FR 16431 (April 1, 2010)
and accompanying Issues and Decision
Memorandum at Comment 1.
Date of Sale
The regulation at 19 CFR 351.401(i)
states that the Department normally will
use the date of invoice, as recorded in
the producer’s or exporter’s records kept
in the ordinary course of business, as
the date of sale. The regulation provides
further that the Department may use a
date other than the date of the invoice
if the Secretary is satisfied that a
different date better reflects the date on
which the material terms of sale are
established. The Department has a longstanding practice of finding that, where
shipment date precedes invoice date,
shipment date better reflects the date on
which the material terms of sale are
established. See, e.g., Notice of Final
Determination of Sales at Less Than
Fair Value and Negative Final
Determination of Critical
Circumstances: Certain Frozen and
Canned Warmwater Shrimp From
Thailand, 69 FR 76918 (December 23,
2004), and accompanying Issues and
Decision Memorandum at Comment 10;
see also Notice of Final Determination
of Sales at Less Than Fair Value:
Structural Steel Beams From Germany,
67 FR 35497 (May 20, 2002), and
accompanying Issues and Decision
Memorandum at Comment 2.
Record evidence indicates that for
certain sales made by Dubai Wire,
shipment date preceded the invoice
date. Therefore, for such sales we used
the shipment date as the date of sale in
accordance with our practice.
Fair Value Comparisons
To determine whether sales of nails to
the United States by Dubai Wire and
Precision Fasteners were made at LTFV
during the POI, we calculated EPs and
normal values, as described in the ‘‘U.S.
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Price’’ and ‘‘Normal Value’’ sections of
this notice. As described in the
‘‘Allegation of Targeted Dumping’’
section, above, we made the
comparisons of average EPs to normal
value, based on constructed value, for
all of Dubai Wire’s and Precision
Fasteners’ reported sales and provided
offsets for any non-dumped
comparisons.
Product Comparisons
We have relied on 10 criteria for
matching U.S. sales of subject
merchandise to normal value: nail form,
product form, steel type, surface finish,
diameter, shank length, collation
material, head style, shank style, and
heat treatment.
U.S. Price
In accordance with section 772(a) of
the Act, we used EP for Dubai Wire’s
and Precision Fasteners’ U.S. sales
where the subject merchandise was sold
directly to unaffiliated customers in the
United States prior to importation. We
calculated EP based on the packed
‘‘Free-on-Board,’’ Cost and Freight,’’ or
‘‘Delivered, Duty Paid,’’ price to
unaffiliated purchasers in, or for
exportation to, the United States. We
made deductions, as appropriate, for
discounts and rebates. We also made
deductions for any movement expenses
in accordance with section 772(c)(2)(A)
of the Act. See company-specific
analysis memorandum, dated
concurrently with this notice.
Normal Value
srobinson on DSK4SPTVN1PROD with NOTICES
A. Comparison-Market Viability
Section 773(a)(1) of the Act directs
that normal value be based on the price
at which the foreign like product is sold
in the comparison market, provided that
the merchandise is sold in sufficient
quantities (or value, if quantity is
inappropriate) and that there is no
particular market situation that prevents
a proper comparison with the export
price. Section 773(a)(1)(C) of the Act
contemplates that quantities (or values)
will normally be considered insufficient
if they are less than five percent of the
aggregate quantity (or value) of sales of
the subject merchandise to the United
States.
In order to determine whether there
was a sufficient volume of sales in the
home market or in the third country to
serve as a viable basis for calculating
normal value, we compared each
respondent’s volume of home-market
and third-country sales of the foreign
like product to the respective volume of
U.S. sales of the subject merchandise in
accordance with sections 773(a)(1)(B)
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Jkt 226001
and (C) of the Act. For both Dubai Wire
and Precision Fasteners, aggregate
volumes of sales of foreign like product
in the home market or in the thirdcountry markets were not greater than
five percent of each company’s sales of
subject merchandise to the United
States. Therefore, neither company’s
sales in the home market or in the thirdcountry markets are viable as a
comparison market. Consequently, we
based normal value on constructed
value for both companies.
B. Calculation of Normal Value Based
on Constructed Value
In accordance with section 773(a)(4)
of the Act, we used constructed value as
the basis for normal value because
neither company had a viable
comparison market. We calculated
constructed value in accordance with
section 773(e) of the Act. We included
the cost of materials and fabrication,
selling, general and administrative
(G&A) expenses, interest expenses, U.S.
packing expenses, and profit in the
calculation of constructed value. We
relied on respondents’ submitted
materials and fabrication costs, G&A,
interest expenses, and U.S. packing
costs, except where noted below. Based
on our examination of record evidence,
Dubai Wire and Precision Fasteners did
not appear to experience significant
changes in the cost of manufacturing
during the period of investigation.
Therefore, we followed our normal
methodology of calculating an annual
weighted-average cost.
For Dubai Wire, we reallocated fixed
overhead to products by calculating a
new fixed overhead ratio and
multiplying this ratio by the reported
direct labor and variable overhead of
each product. We calculated G&A
expenses for Dubai Wire on an
unconsolidated basis. We analyzed the
interest expense for loans between
Dubai Wire and its affiliate under the
‘‘transactions disregarded rule’’ of
section 773(f)(2) of the Act, and
determined that the loans were not at
arm’s length rates. As a result, we
included an imputed interest expense
amount associated with the non-arm’s
length affiliated party loans.
For Precision Fasteners, we
reallocated the reported direct material
costs to products by weight-averaging
the reported direct material by steel type
and surface finish to alleviate the issue
of cost differences unrelated to
differences in physical characteristics.
We reallocated fixed overhead to
products using the ratio of fixed
overhead costs to the reported direct
labor and variable overhead costs. For
additional details on these adjustments,
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see memorandum to Neal Halper from
James Balog (Precision Fasteners) or
Gary Urso (Dubai Wire), entitled ‘‘Cost
of Production and Constructed Value
Calculation Adjustments for the
Preliminary Determination’’ dated
concurrently with this notice
(Preliminary Determination Cost
Calculation Memos).
Because Dubai Wire and Precision
Fasteners did not have a viable
comparison market, we did not
determine selling expenses and profit
under section 773(e)(2)(A) of the Act,
instead relying on 773(e)(2)(B) of the
Act. The statute does not establish a
hierarchy for selecting among the
alternative methodologies provided in
section 773(e)(2)(B) of the Act. See SAA
at 840. Section 773(e)(2)(B)(iii) of the
Act specifies that profit and selling
expenses may be calculated based on
any other reasonable method as long as
the result is not greater than the amount
realized by exporters or producers ‘‘in
connection with the sale, for
consumption in the foreign country, of
merchandise that is in the same general
category of products as the subject
merchandise’’ (i.e., the profit cap).
For both Dubai Wire and Precision
Fasteners, we used the profit rate
derived from the publicly available
financial statements for the fiscal year
most contemporaneous with the POI for
a company in the United Arab Emirates,
Arab Heavy Industries. See Exhibit 14 of
April 11, 2011, supplement to the
petition. This company produces
products in the same general category of
merchandise as nails. Further, because
this source of information did not
provide enough detail to calculate
selling expenses for Dubai Wire and
Precision Fasteners, we used the
companies’ respective company-wide
selling-expense rates. See companyspecific analysis memorandum. We find
that, absent alternatives, this approach
satisfies sufficiently the criteria of
section 773(e) because the selling
expenses were derived for subject
merchandise as well as for products in
the same general category as subject
merchandise.
In the instant case, the profit cap
cannot be calculated using the available
data because we do not have sales in the
same general category that would result
in a profit cap that is reflective of sales
in the foreign country. Specifically, it is
not clear whether the Arab Heavy
Industries financial statement includes
only sales in the foreign country.
Therefore, because there is no other
information available on the record, as
facts available, we are applying option
(iii) of section 773(e)(2)(B) of the Act,
without quantifying a profit cap.
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When appropriate, we made
adjustments to constructed value in
accordance with section 773(a)(8) of the
Act, 19 CFR 351.410, and 19 CFR
351.412 for circumstance-of-sale
differences. We calculated constructed
value without regard to level of trade
with respect to EP sales because neither
company had a viable comparison
market.
Currency Conversion
It is our normal practice to make
currency conversions into U.S. dollars
in accordance with section 773A(a) of
the Act based on exchange rates in effect
on the dates of the U.S. sales, as
certified by the Federal Reserve Bank.
Verification
As provided in section 782(i)(1) of the
Act, we intend to verify the information
relied upon in making our final
determination for Dubai Wire and
Precision Fasteners.
srobinson on DSK4SPTVN1PROD with NOTICES
Suspension of Liquidation
In accordance with section 733(d)(2)
of the Act, we will direct CBP to
suspend liquidation of all entries of
nails from the UAE that are entered, or
withdrawn from warehouse, for
consumption on or after the date of
publication of this notice in the Federal
Register. We will instruct CBP to
require a cash deposit or the posting of
a bond equal to the weighted-average
margins, as indicated below, as follows:
(1) The rates for Dubai Wire, Precision
Fasteners, and Tech Fast will be the
rates we have determined in this
preliminary determination; (2) if the
exporter is not a firm identified in this
investigation but the producer is, the
rate will be the rate established for the
producer of the subject merchandise; (3)
the rate for all other producers or
exporters will be 23.48 percent, as
discussed in the ‘‘All-Others Rate’’
section, below. These suspension-ofliquidation instructions will remain in
effect until further notice.
zero or de minimis margins and any
margins determined entirely under
section 776 of the Act. Dubai Wire and
Precision Fasteners are the only
respondents in this investigation for
which we calculated a company-specific
rate that is not zero or de minimis or
determined entirely under Section 776
of the Act. Therefore, because there are
only two relevant weighted-average
dumping margins for this preliminary
determination and because using a
weighted-average risks disclosure of
business proprietary information of
Dubai Wire and Precision Fasteners, the
‘‘all-others’’ rate is a simple-average of
these two values, which is 23.48
percent. See Seamless Refined Copper
Pipe and Tube From Mexico: Final
Determination of Sales at Less Than
Fair Value, 75 FR 60723, 60724 (October
1, 2010).
Disclosure
We will disclose the calculations
performed in our preliminary
determination to interested parties in
this proceeding in accordance with 19
CFR 351.224(b).
ITC Notification
In accordance with section 733(f) of
the Act, we have notified the ITC of our
preliminary affirmative determination.
If the Department’s final determination
is affirmative, the ITC will determine
before the later of 120 days after the date
of this preliminary determination or 45
days after our final determination
whether imports of nails from the UAE
are materially injuring, or threatening
material injury to, the U.S. industry (see
section 735(b)(2) of the Act). Because we
are postponing the deadline for our final
determination to 135 days from the date
of the publication of this preliminary
determination, as discussed below, the
ITC will make its final determination no
later than 45 days after our final
determination.
Public Comment
Interested parties are invited to
Weightedcomment on the preliminary
average
Manufacturer/Exporter
determination. Interested parties may
margin
submit case briefs to the Department no
(percent)
later than seven days after the date of
Dubai Wire FZE ........................
27.73 the issuance of the last verification
Precision Fasteners LLC ..........
19.23 report in this proceeding. Rebuttal
Tech Fast International Ltd. .....
61.54 briefs, the content of which is limited to
the issues raised in the case briefs, must
All-Others Rate
be filed within five days from the
Section 735(c)(5)(A) of the Act
deadline date for the submission of case
provides that the estimated all-others
briefs. See 19 CFR 351.309(d). A list of
rate shall be an amount equal to the
authorities used, a table of contents, and
weighted average of the estimated
an executive summary of issues should
weighted-average dumping margins
accompany any briefs submitted to the
established for exporters and producers
Department. See 19 CFR 351.309(c)(2).
individually investigated excluding any Executive summaries should be limited
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68135
to five pages total, including footnotes.
Further, we request that parties
submitting briefs and rebuttal briefs
provide the Department with a copy of
the public version of such briefs on
diskette.
In accordance with section 774 of the
Act, the Department will hold a public
hearing, if timely requested, to afford
interested parties an opportunity to
comment on issues raised in case briefs,
provided that such a hearing is
requested by an interested party. See
also 19 CFR 351.310. If a timely request
for a hearing is made in this
investigation, we intend to hold the
hearing two days after the deadline for
filing a rebuttal brief. Parties should
confirm by telephone the date, time, and
location of the hearing 48 hours before
the scheduled date.
Any interested party may request a
hearing within 30 days of publication of
this notice. See 19 CFR 351.310(c).
Hearing requests should contain the
following information: (1) The party’s
name, address, and telephone number;
(2) the number of participants; and (3)
a list of the issues to be discussed. Oral
presentations will be limited to issues
raised in the briefs. If a request for a
hearing is made, parties will be notified
of the time and date for the hearing to
be held at the U.S. Department of
Commerce, 14th Street and Constitution
Avenue NW., Washington, DC 20230.
See 19 CFR 351.310(d).
Postponement of Final Determination
and Extension of Provisional Measures
Section 735(a)(2) of the Act provides
that a final determination may be
postponed until not later than 135 days
after the date of the publication of the
preliminary determination if, in the
event of an affirmative preliminary
determination, a request for such
postponement is made by exporters who
account for a significant proportion of
exports of the subject merchandise or, in
the event of a negative preliminary
determination, a request for such
postponement is made by the petitioner.
Section 351.210(e)(2) of the
Department’s regulations requires that
requests by respondents for
postponement of a final determination
be accompanied by a request for
extension of provisional measures from
a four-month period to not more than
six months.
On October 4, 2011, Dubai Wire and
Precision Fasteners requested that, in
the event of an affirmative preliminary
determination in this investigation, the
Department postpone its final
determination by 60 days. At the same
time, these companies requested that
the Department extend the application
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of the provisional measures prescribed
under section 733(d) of the Act and 19
CFR 351.210(e)(2) from a four-month to
a six-month period. In accordance with
section 735(a)(2) of the Act and 19 CFR
351.210(b)(2), because (1) our
preliminary determination is
affirmative, (2) the requesting exporters
account for a significant proportion of
exports of the subject merchandise, and
(3) no compelling reasons for denial
exist, we are granting this request and
are postponing the final determination
until no later than 135 days after the
publication of this notice in the Federal
Register. Suspension of liquidation will
be extended accordingly.
This determination is issued and
published pursuant to sections 733(f)
and 777(i)(1) of the Act.
Dated: October 27, 2011.
Paul Piquado,
Assistant Secretary for Import
Administration.
srobinson on DSK4SPTVN1PROD with NOTICES
Appendix I
Scope of the Investigation
The merchandise covered by this
investigation includes certain steel nails
having a shaft length up to 12 inches. Certain
steel nails include, but are not limited to,
nails made of round wire and nails that are
cut. Certain steel nails may be of one piece
construction or constructed of two or more
pieces. Certain steel nails may be produced
from any type of steel, and have a variety of
finishes, heads, shanks, point types, shaft
lengths and shaft diameters. Finishes
include, but are not limited to, coating in
vinyl, zinc (galvanized, whether by
electroplating or hot-dipping one or more
times), phosphate cement, and paint. Head
styles include, but are not limited to, flat,
projection, cupped, oval, brad, headless,
double, countersunk, and sinker. Shank
styles include, but are not limited to, smooth,
barbed, screw threaded, ring shank and
fluted shank styles. Screw-threaded nails
subject to this investigation are driven using
direct force and not by turning the fastener
using a tool that engages with the head. Point
styles include, but are not limited to,
diamond, blunt, needle, chisel and no point.
Certain steel nails may be sold in bulk, or
they may be collated into strips or coils using
materials such as plastic, paper, or wire.
Certain steel nails subject to this
investigation are currently classified under
the Harmonized Tariff Schedule of the
United States (HTSUS) subheadings
7317.00.55, 7317.00.65, and 7317.00.75.
Excluded from the scope of this
investigation are steel nails specifically
enumerated and identified in ASTM
Standard F 1667 (2005 revision) as Type I,
Style 20 nails, whether collated or in bulk,
and whether or not galvanized.
Also excluded from the scope of this
investigation are the following products:
• non-collated (i.e., hand-drive or bulk),
two-piece steel nails having plastic or steel
washers (‘‘caps’’) already assembled to the
nail, having a bright or galvanized finish, a
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Jkt 226001
ring, fluted or spiral shank, an actual length
of 0.500″ to 8″, inclusive; an actual shank
diameter of 0.1015″ to 0.166″, inclusive; and
an actual washer or cap diameter of 0.900″
to 1.10″, inclusive;
• non-collated (i.e., hand-drive or bulk),
steel nails having a bright or galvanized
finish, a smooth, barbed or ringed shank, an
actual length of 0.500″ to 4″, inclusive; an
actual shank diameter of 0.1015″ to 0.166″,
inclusive; and an actual head diameter of
0.3375″ to 0.500″, inclusive, and whose
packaging and packaging marking are clearly
and prominently labeled ‘‘Roofing″ or ‘‘Roof″
nails;
• wire collated steel nails, in coils, having
a galvanized finish, a smooth, barbed or
ringed shank, an actual length of 0.500″ to
1.75″, inclusive; an actual shank diameter of
0.116″ to 0.166″, inclusive; and an actual
head diameter of 0.3375″ to 0.500″, inclusive,
and whose packaging and packaging marking
are clearly and prominently labeled
‘‘Roofing″ or ‘‘Roof’’ nails;
• non-collated (i.e., hand-drive or bulk),
steel nails having a convex head (commonly
known as an umbrella head), a smooth or
spiral shank, a galvanized finish, an actual
length of 1.75″ to 3″, inclusive; an actual
shank diameter of 0.131″ to 0.152″, inclusive;
and an actual head diameter of 0.450″ to
0.813″, inclusive, and whose packaging and
packaging marking are clearly and
prominently labeled ‘‘Roofing’’ or ‘‘Roof’’
nails;
• corrugated nails. A corrugated nail is
made of a small strip of corrugated steel with
sharp points on one side;
• thumb tacks, which are currently
classified under HTSUS 7317.00.10.00;
• fasteners suitable for use in powderactuated hand tools, not threaded and
threaded, which are currently classified
under HTSUS 7317.00.20 and 7317.00.30;
• certain steel nails that are equal to or less
than 0.0720 inches in shank diameter, round
or rectangular in cross section, between 0.375
inches and 2.5 inches in length, and that are
collated with adhesive or polyester film tape
backed with a heat seal adhesive; and
• fasteners having a case hardness greater
than or equal to 50 HRC, a carbon content
greater than or equal to 0.5 percent, a round
head, a secondary reduced-diameter raised
head section, a centered shank, and a smooth
symmetrical point, suitable for use in gasactuated hand tools.
While the HTSUS subheadings are
provided for convenience and customs
purposes, the written description of the
scope of this investigation is dispositive.
Appendix II
Scope of the Investigation
The merchandise covered by this
investigation includes certain steel nails
having a shaft length up to 12 inches. Certain
steel nails include, but are not limited to,
nails made of round wire and nails that are
cut. Certain steel nails may be of one piece
construction or constructed of two or more
pieces. Certain steel nails may be produced
from any type of steel, and have a variety of
finishes, heads, shanks, point types, shaft
lengths and shaft diameters. Finishes
include, but are not limited to, coating in
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vinyl, zinc (galvanized, whether by
electroplating or hot-dipping one or more
times), phosphate cement, and paint. Head
styles include, but are not limited to, flat,
projection, cupped, oval, brad, headless,
double, countersunk, and sinker. Shank
styles include, but are not limited to, smooth,
barbed, screw threaded, ring shank and
fluted shank styles. Screw-threaded nails
subject to this investigation are driven using
direct force and not by turning the fastener
using a tool that engages with the head. Point
styles include, but are not limited to,
diamond, blunt, needle, chisel and no point.
Certain steel nails may be sold in bulk, or
they may be collated into strips or coils using
materials such as plastic, paper, or wire.
Certain steel nails subject to this
investigation are currently classified under
the Harmonized Tariff Schedule of the
United States (HTSUS) subheadings
7317.00.55, 7317.00.65, and 7317.00.75.
Excluded from the scope of this
investigation are steel nails specifically
enumerated and identified in ASTM
Standard F 1667 (2011 revision) as Type I,
Style 20 nails, whether collated or in bulk,
and whether or not galvanized.
Also excluded from the scope of this
investigation are the following products:
• Non-collated (i.e., hand-drive or bulk),
two-piece steel nails having plastic or steel
washers (‘‘caps’’) already assembled to the
nail, having a bright or galvanized finish, a
ring, fluted or spiral shank, an actual length
of 0.500’’ to 8’’, inclusive; an actual shank
diameter of 0.1015’’ to 0.166’’, inclusive; and
an actual washer or cap diameter of 0.900’’
to 1.10’’, inclusive;
• Non-collated (i.e., hand-drive or bulk),
steel nails having a bright or galvanized
finish, a smooth, barbed or ringed shank, an
actual length of 0.500’’ to 4’’, inclusive; an
actual shank diameter of 0.1015’’ to 0.166’’,
inclusive; and an actual head diameter of
0.3375’’ to 0.500’’, inclusive;
• Wire collated steel nails, in coils, having
a galvanized finish, a smooth, barbed or
ringed shank, an actual length of 0.500’’ to
1.75’’, inclusive; an actual shank diameter of
0.116’’ to 0.166’’, inclusive; and an actual
head diameter of 0.3375’’ to 0.500’’,
inclusive;
• Non-collated (i.e., hand-drive or bulk),
steel nails having a convex head (commonly
known as an umbrella head), a smooth or
spiral shank, a galvanized finish, an actual
length of 1.75’’ to 3’’, inclusive; an actual
shank diameter of 0.131’’ to 0.152’’,
inclusive; and an actual head diameter of
0.450’’ to 0.813’’, inclusive;
• Corrugated nails. A corrugated nail is
made of a small strip of corrugated steel with
sharp points on one side;
• Thumb tacks, which are currently
classified under HTSUS 7317.00.10.00;
• Fasteners suitable for use in powderactuated hand tools, not threaded and
threaded, which are currently classified
under HTSUS 7317.00.20 and 7317.00.30;
• Certain steel nails that are equal to or
less than 0.0720 inches in shank diameter,
round or rectangular in cross section,
between 0.375 inches and 2.5 inches in
length, and that are Collated with adhesive
or polyester film tape backed with a heat seal
adhesive; and
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Federal Register / Vol. 76, No. 213 / Thursday, November 3, 2011 / Notices
• fasteners having a case hardness greater
than or equal to 50 HRC, a carbon content
greater than or equal to 0.5 percent, a round
head, a secondary reduced-diameter raised
head section, a centered shank, and a smooth
symmetrical point, suitable for use in gasactuated hand tools.
While the HTSUS subheadings are
provided for convenience and customs
purposes, the written description of the
scope of this investigation is dispositive.
[FR Doc. 2011–28542 Filed 11–2–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–549–821]
Polyethylene Retail Carrier Bags From
Thailand: Amended Final Results of
Antidumping Duty Administrative
Review
Import Administration,
International Trade Administration,
Department of Commerce.
DATES: Effective Date: November 3,
2011.
AGENCY:
FOR FURTHER INFORMATION CONTACT:
Bryan Hansen, AD/CVD Operations,
Office 1, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue NW.,
Washington, DC 20230; telephone (202)
482–3683.
SUPPLEMENTARY INFORMATION:
Background
On September 28, 2011, the
Department of Commerce (the
Department) published Polyethylene
Retail Carrier Bags From Thailand: Final
Results of Antidumping Duty
Administrative Review, 76 FR 59999
(September 28, 2011) (Final Results), in
the Federal Register.
We received a timely allegation of a
ministerial error pursuant to 19 CFR
351.224(c) from the Polyethylene Retail
Carrier Bag Committee and its
individual members, Hilex Poly Co.,
LLC and Superbag Corp., the
petitioners, alleging that we calculated a
constructed value (CV) profit ratio using
a denominator that includes direct and
indirect selling expenses, but in the
margin program we determined CV
profit by applying this ratio to Landblue
(Thailand) Co., Ltd.’s (Landblue) cost of
production exclusive of direct selling
expenses.1 This incongruity was
unintentional and results in the
understatement of CV profit. Although
the Department agreed with the
petitioners that the alleged error is a
ministerial error, the Department was
unable to issue a determination
correcting this error before parties
68137
challenged the Final Results at the Court
of International Trade (CIT). On October
25, 2011, the CIT granted the
Department leave to amend the Final
Results and correct the ministerial error.
Therefore, in accordance with 19 CFR
351.224(e), we are hereby amending the
Final Results with respect to Landblue
to correct the ministerial error in our
calculation of Landblue’s weightedaverage margin, and with respect to the
respondents not selected for individual
examination in so far as the change in
Landblue’s weighted-average margin
affects their margins.2 For details, see
the respective memoranda from Bryan
Hansen to the File entitled
‘‘Polyethylene Retail Carrier Bags from
Thailand—Landblue (Thailand) Co.,
Ltd., Amended Final Results Analysis
Memorandum’’ and ‘‘Polyethylene
Retail Carrier Bags from Thailand—
Amended Final Results Margin
Calculation for Respondents Not
Selected for Individual Examination,’’
dated concurrently with this notice.
Amended Final Results of the Review
As a result of our correction of the
ministerial error, we determine that the
following percentage weighted-average
dumping margins exist for polyethylene
retail carrier bags from Thailand for the
period August 1, 2009, through July 31,
2010:
Producer/Exporter
Percent
margin
First Pack Co. Ltd. ...............................................................................................................................................................................
K International Packaging Co., Ltd. .....................................................................................................................................................
Landblue (Thailand) Co., Ltd. ..............................................................................................................................................................
Praise Home Industry, Co. Ltd. ...........................................................................................................................................................
Siam Flexible Industries Co., Ltd. .......................................................................................................................................................
Thai Jirun Co., Ltd. 28.74.
28.74
28.74
25.73
28.74
28.74
The Department shall determine and
U.S. Customs and Border Protection
(CBP) shall assess antidumping duties
on all appropriate entries. In accordance
with 19 CFR 351.212(b)(1), we
calculated importer/customer-specific
duty-assessment amounts with respect
to sales by Landblue by dividing the
total dumping margins (calculated as
the difference between normal value
and the export price) for each importer
or customer by the total number of
kilograms Landblue sold to that
importer or customer. We will direct
CBP to assess the resulting per-kilogram
dollar amount against each kilogram of
merchandise on each of that importer’s
or customer’s entries during the period
of review.
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). This
clarification will apply to entries of
subject merchandise during the POR
produced by Landblue for which
Landblue did not know its merchandise
was destined for the United States. In
such instances, we will instruct CBP to
liquidate unreviewed entries of
merchandise produced by Landblue at
the all-others rate if there is no rate for
the intermediate company(ies) involved
in the transaction.
For the companies which were not
selected for individual examination and
which did not submit statements of no
shipments, we will instruct CBP to
apply the rates listed above to all entries
of subject merchandise produced and/or
exported by such firms.
The Department intends to issue
instructions to CBP 15 days after the
publication of these amended final
results of review.
1 Because Landblue did not have home-market
and third-country sales during the period of review,
we used the 2010 financial statements of a third
company not under review, Thantawan Public
Industry Company, to calculate CV profit and CV
selling expenses for Landblue.
2 For the Final Results, we calculated the margins
for respondents not selected for individual
examination by using the public, weighted-average
margin calculated using the ranged sales values of
the selected respondents, Landblue and Thai Plastic
Bags Industries Co., Ltd.
srobinson on DSK4SPTVN1PROD with NOTICES
Assessment Rates
VerDate Mar<15>2010
16:50 Nov 02, 2011
Jkt 226001
PO 00000
Frm 00012
Fmt 4703
Sfmt 4703
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Agencies
[Federal Register Volume 76, Number 213 (Thursday, November 3, 2011)]
[Notices]
[Pages 68129-68137]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28542]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-520-804]
Certain Steel Nails From the United Arab Emirates: Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of Commerce (the Department) preliminarily
determines that certain steel nails (nails) from the United Arab
Emirates (UAE) are being, or are likely to be, sold in the United
States at less than fair value (LTFV) as provided in section 733(b) of
the Tariff Act of 1930, as amended (the Act). The estimated margins of
sales at LTFV are listed in the ``Suspension of Liquidation'' section
of this notice. Interested parties are invited to comment on this
preliminary determination.
DATES: Effective Date: November 3, 2011.
FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov or Michael A.
Romani, AD/CVD Operations, Office 1, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue NW., Washington, DC 20230; telephone
(202) 482-0665 and (202) 482-0198, respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 31, 2011, Mid Continent Nail Corporation (the petitioner)
filed an antidumping petition concerning imports of nails from the UAE.
See the Petition for the Imposition of Antidumping Duties on Certain
Steel Nails from the United Arab Emirates, dated March 31, 2011 (the
petition).
On April 27, 2011, the Department initiated the antidumping duty
investigation on nails from the UAE. See Certain Steel Nails From the
United Arab Emirates: Initiation of Antidumping Duty Investigation, 76
FR 23559 (April 27, 2011) (Initiation Notice).
The Department set aside a period of time for parties to raise
issues regarding product coverage and encouraged all parties to submit
comments within 20 calendar days of the date of publication of the
Initiation Notice. See Initiation Notice, 76 FR at 23560. We received
no comments from interested parties concerning product coverage. The
Department also set aside a period of time for parties to comment on
product characteristics for use in the antidumping duty questionnaire.
See Initiation Notice, 76 FR at 23560. On May 10, 2011, we received
comments from the petitioner. On May 17, 2011, we received comments
from Precision Fasteners LLC (Precision Fasteners), a UAE producer and
exporter of subject merchandise. On May 24, 2011, we received
additional comments from the petitioner. After reviewing all comments,
we have adopted the characteristics and hierarchy as explained in the
``Product Comparisons'' section of this notice, below.
On May 19, 2011, we selected Dubai Wire FZE (Dubai Wire), Precision
Fasteners, and Tech Fast International Ltd. (Tech Fast), as mandatory
respondents in this investigation. See the ``Selection of Respondents''
section of this notice, below.
On May 20, 2011, the International Trade Commission (ITC) published
its affirmative preliminary determination that there is a reasonable
indication that imports of nails from the UAE are materially injuring
the U.S. industry, and the ITC notified the Department of its finding.
See Certain Steel Nails From the United Arab Emirates; Determination,
Investigation No. 731-TA-1185 (Preliminary), 76 FR 29266 (May 20,
2011).
On May 26, 2011, we issued the antidumping questionnaire to Dubai
Wire, Precision Fasteners, and Tech Fast. We received questionnaire
responses from Dubai Wire and Precision Fasteners. We did not receive a
questionnaire response from Tech Fast.
On July 20, 2011, based on a timely request from the petitioner, we
extended the deadline for alleging targeted dumping.
On August 8, 2011, the petitioner filed allegations of targeted
dumping by Dubai Wire and Precision Fasteners. See the ``Allegation of
Targeted Dumping'' section below.
On August 8, 2011, the petitioner requested that the Department
postpone its preliminary determination by 50 days. In accordance with
section 733(c)(1)(A) of the Act, we postponed our preliminary
determination by 50 days. See Certain Steel Nails From the United Arab
Emirates: Postponement of Preliminary Determination of Antidumping Duty
Investigation, 76 FR 52313 (August 22, 2011).
On October 4, 2011, Dubai Wire and Precision Fasteners requested
that, in the event of an affirmative preliminary determination in this
investigation, the Department postpone its final determination by 60
days in accordance with section 735(a)(2)(A) of the Act and 19 CFR
351.210(b)(2)(ii) and extend the application of the provisional
measures prescribed under 19 CFR 351.210(e)(2) from a four-month to a
six-month period.
On October 13, 2011, the petitioner submitted comments with respect
to Dubai Wire and Precision Fasteners for consideration in the
preliminary determination. On October 18, 2011, Dubai Wire submitted
rebuttal comments. On October 21, 2011, Precision Fasteners submitted
rebuttal comments. On October 24, 2011, the petitioner submitted
additional
[[Page 68130]]
comments with respect to Dubai Wire. On October 25, 2011, Precision
Fasteners submitted additional comments concerning targeted dumping
allegation.
Period of Investigation
The POI is January 1, 2010, through December 31, 2010. This period
corresponds to the four most recent fiscal quarters prior to the month
of the filing of the petition, March 2011. See 19 CFR 351.204(b)(1).
Scope of Investigation
The products covered by this investigation are nails from the UAE.
For a full description of the scope of the investigation, as set forth
in the Initiation Notice, please see the ``Scope of the Investigation''
in Appendix I of this notice.
Changes to the Scope of Investigation
For this preliminary determination we are clarifying the scope of
investigation to conform with the decision in Certain Steel Nails From
the People's Republic of China: Initiation and Preliminary Results of
Antidumping Duty Changed Circumstances Review, 76 FR 22369 (April 21,
2011) (China Nails CCR) (unchanged in Certain Steel Nails From the
People's Republic of China: Final Results of Antidumping Duty Changed
Circumstances Review, 76 FR 30101 (May 24, 2011)). The scope
description in the Initiation Notice included language referring to the
packaging characteristics of certain nails excluded from the scope.
However, in China Nails CCR, we determined that the physical
characteristics of the nails, and not the labeling, were determinative
of their inclusion or exclusion from the scope. See China Nails CCR, 76
FR 22371. Accordingly, we are revising the scope of this investigation
by removing the following language pertaining to three types of roofing
nails that are excluded from the scope of the investigation, ``and
whose packaging and packaging marking are clearly and prominently
labeled `Roofing' or `Roof' nails.'' See Appendix II of this notice.
Additionally, for the preliminary determination, we are modifying
the scope of the investigation to reflect the ASTM Standard F 1667
(2011 revision) rather than the 2005 revision because the 2011 revision
describes additional types of roofing nails not provided for in the
2005 revision. Accordingly, for this preliminary determination, we have
adopted the following revision to the scope language, ``Excluded from
the scope of this investigation are steel nails specifically enumerated
and identified in ASTM Standard F 1667 (2011 revision) as Type I, Style
20 nails, whether collated or in bulk, and whether or not galvanized.''
See Appendix II.
We invite interested parties to comment on these modifications to
the scope of this investigation.
Selection of Respondents
Section 777A(c)(1) of the Act directs the Department to calculate
individual dumping margins for each known exporter and producer of the
subject merchandise. Section 777A(c)(2) of the Act gives the Department
discretion, when faced with a large number of exporters or producers,
to limit its examination to a reasonable number of such companies if it
is not practicable to examine all companies. The data on the record
indicates that there are over 10 potential producers or exporters from
the UAE that exported the subject merchandise to the United States
during the POI. See letter to all interested parties dated May 2, 2011.
In the Initiation Notice we stated that we intended to select
respondents based on U.S. Customs and Border Protection (CBP) data for
U.S. imports under the Harmonized Tariff Schedule of the United States
(HTSUS) numbers 7317.00.55, 7317.00.65, and 7317.00.75, the three
categories most specific to subject merchandise, for entries made
during the POI. See Initiation Notice, 76 FR 23563. We invited comments
on CBP data and selection of respondents for individual examination.
Id.
On May 2, 2011, we released the CBP data to all parties with access
to information protected by administrative protective order. Based on
our review of the CBP data and our consideration of the comments we
received from Dubai Wire on May 5, 2011, and from the petitioner on May
9, 2011, we determined that we had the resources to examine three
companies. Accordingly, we selected Dubai Wire, Precision Fasteners,
and Tech Fast \1\ for individual examination in this investigation.
These companies are the three producers/exporters of subject
merchandise that account for the largest volume of the subject
merchandise imported during the POI that we can reasonably examine in
accordance with section 777A(c)(2)(B) of the Act. See Memorandum to
Christian Marsh entitled ``Certain Steel Nails from the United Arab
Emirates: Selection of Respondents for Individual Examination'' dated
May 19, 2011.
---------------------------------------------------------------------------
\1\ Selected respondents are listed in alphabetical order.
---------------------------------------------------------------------------
Use of Facts Otherwise Available
For the reasons discussed below, we determine that the use of facts
otherwise available with an adverse inference is appropriate for the
preliminary determination with respect to Tech Fast.
A. Use of Facts Available
As indicated in the ``Background'' section above, Tech Fast did not
respond to our questionnaire dated May 26, 2011. See memorandum dated
October 18, 2011 (documenting our attempts to deliver the questionnaire
to Tech Fast). As such, Tech Fast withheld information necessary to
calculate a margin for its sales to the United States. Section
776(a)(2) of the Act provides that, if an interested party withholds
information requested by the administering authority, fails to provide
such information by the deadlines for submission of the information or
in the form and manner requested, subject to subsections (c)(1) and (e)
of section 782, significantly impedes a proceeding under this title, or
provides such information but the information cannot be verified as
provided in section 782(i) of the Act, the administering authority
shall use, subject to section 782(d) of the Act, facts otherwise
available in reaching the applicable determination. Section 782(e) of
the Act states further 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; (5) the information can be
used without undue difficulties.
In this case, Tech Fast did not respond to our request for
information, withheld information the Department requested, and
significantly impeded the proceeding. Because Tech Fast failed to
provide any information, section 782(e) of the Act is inapplicable.
Accordingly, pursuant to section 776(a) of the Act, we are relying upon
facts otherwise available for Tech Fast's antidumping duty margin.
B. Application of Adverse Inferences for Facts Available
Section 776(b) of the Act provides that, if the Department finds
that an interested party has failed to cooperate by not acting to the
best of its ability to comply with a request for information, the
Department may use an inference adverse to the interests of that party
in
[[Page 68131]]
selecting the facts otherwise available. See Notice of Final Results of
Antidumping Duty Administrative Review: Stainless Steel Bar from India,
70 FR 54023, 54025-26 (September 13, 2005), and Notice of Final
Determination of Sales at Less Than Fair Value and Final Negative
Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from
Brazil, 67 FR 55792, 55794-96 (August 30, 2002). In addition, the
Statement of Administrative Action accompanying the Uruguay Round
Agreements Act, H.R. Rep. 103-316, Vol. 1, 103d Cong. (1994) (SAA),
explains that the Department may employ an adverse inference ``to
ensure that the party does not obtain a more favorable result by
failing to cooperate than if it had cooperated fully.'' See SAA at 870;
and, e.g., Certain Polyester Staple Fiber from Korea: Final Results of
the 2005-2006 Antidumping Duty Administrative Review, 72 FR 69663
(December 10, 2007). Furthermore, affirmative evidence of bad faith on
the part of a respondent is not required before the Department may make
an adverse inference. See, e.g., Notice of Final Determination of Sales
at Less Than Fair Value: Circular Seamless Stainless Steel Hollow
Products From Japan, 65 FR 42985 (July 12, 2000); Antidumping Duties,
Countervailing Duties, 62 FR 27296, 27340 (May 19, 1997); and Nippon
Steel Corp. v. United States, 337 F.3d 1373, 1382-83 (CAFC 2003). It is
the Department's practice to consider, in employing adverse inferences,
the extent to which a party may benefit from its own lack of
cooperation.
Although we provided Tech Fast with notice informing it of the
consequences of its failure to respond fully to our antidumping
questionnaire, Tech Fast refrained from participating in this
investigation and has failed to provide any response to our request for
information. This failure to respond indicates that Tech Fast has
determined not to cooperate with our requests for information or to
participate in this investigation. Tech Fast's decision not to
participate in this investigation has precluded the Department from
performing the necessary analysis and verification of Tech Fast's
questionnaire responses required by section 782(i)(1) of the Act.
Accordingly, the Department concludes that Tech Fast failed to
cooperate to the best of its ability to comply with a request for
information by the Department pursuant to section 776(b) of the Act.
Based on the above, the Department has preliminarily determined
that Tech Fast has failed to cooperate to the best of its ability and,
therefore, in selecting from among the facts otherwise available, an
adverse inference is warranted. See, e.g., Notice of Final
Determination of Sales at Less Than Fair Value: Circular Seamless
Stainless Steel Hollow Products From Japan, 65 FR at 42986 (July 12,
2000) (where the Department applied total adverse facts available (AFA)
where the respondent failed to respond to the antidumping
questionnaire).
C. Selection and Corroboration of Information Used as Facts Available
Where the Department applies AFA because a respondent failed to
cooperate by not acting to the best of its ability to comply with a
request for information, section 776(b) of the Act authorizes the
Department to rely on information derived from the petition, a final
determination, a previous administrative review, or other information
placed on the record. See also 19 CFR 351.308(c) and the SAA at 868-
870. In selecting a rate for AFA, the Department selects a rate that is
sufficiently adverse to ensure that the uncooperative party does not
obtain a more favorable result by failing to cooperate than if it had
fully cooperated. Normally, it is the Department's practice to use the
highest rate from the petition in an investigation when a respondent
fails to act to the best of its ability to provide the necessary
information. See, e.g., Notice of Preliminary Determination of Sales at
Less Than Fair Value and Postponement of Final Determination: Purified
Carboxymethylcellulose From Finland, 69 FR 77216 (December 27, 2004)
(unchanged in Notice of Final Determination of Sales at Less Than Fair
Value: Purified Carboxymethylcellulose From Finland, 70 FR 28279 (May
17, 2005)). The rates in the petition range from 61.54 percent to
184.41 percent. See Initiation Notice at 23563. Because the rates we
preliminarily determined for cooperative respondents, Dubai Wire and
Precision Fasteners, are 27.02 and 18.09, respectively, we have
selected the petition rate of 61.54 percent. This rate achieves the
purpose of applying an adverse inference, i.e., it is sufficiently
adverse to ensure that the uncooperative party does not obtain a more
favorable result by failing to cooperate than if it had fully
cooperated. See Gallant Ocean (Thailand) Co. v. United States, 602 F.3d
1319 (Fed. Cir. 2010).
When using facts otherwise available, section 776(c) of the the Act
provides that, where the Department relies on secondary information
(such as the petition) rather than information obtained in the course
of an investigation, it must corroborate, to the extent practicable,
information from independent sources that are reasonably at its
disposal. The SAA clarifies that ``corroborate'' means the Department
will satisfy itself that the secondary information to be used has
probative value. See SAA at 870. As stated in Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, From Japan, and Tapered
Roller Bearings, Four Inches or Less in Outside Diameter, and
Components Thereof, From Japan; Preliminary Results of Antidumping Duty
Administrative Reviews and Partial Termination of Administrative
Reviews, 61 FR 57391, 57392 (November 6, 1996) (unchanged in Tapered
Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan,
and Tapered Roller Bearings, Four Inches or Less in Outside Diameter,
and Components Thereof, From Japan; Final Results of Antidumping Duty
Administrative Reviews and Termination in Part, 62 FR 11825, 11843
(March 13, 1997)), to corroborate secondary information, the Department
will examine, to the extent practicable, the reliability and relevance
of the information used. The Department's regulations state that
independent sources used to corroborate such evidence may include, for
example, published price lists, official import statistics and customs
data, and information obtained from interested parties during the
particular investigation. See 19 CFR 351.308(d) and the SAA at 870.
For the purposes of this investigation and to the extent
appropriate information was available, we reviewed the adequacy and
accuracy of the information in the petition during our pre-initiation
analysis and for purposes of this preliminary determination. See
Antidumping Investigation Initiation Checklist dated April 20, 2011
(Initiation Checklist), at 5 through 14. See also Initiation Notice at
23561-23563. We examined evidence supporting the calculations in the
petition to determine the probative value of the margins alleged in the
petition for use as AFA for purposes of this preliminary determination.
During our pre-initiation analysis we examined the key elements of the
Export Price (EP) and normal-value calculations used in the petition to
derive margins. During our pre-initiation analysis we also examined
information from various independent sources provided either in the
petition or in supplements to the petition that corroborates key
elements of the EP and normal-value calculations
[[Page 68132]]
used in the petition to derive estimated margins. Id.
Based on our examination of the information, as discussed in detail
in the Initiation Checklist and the Initiation Notice, we consider the
petitioner's calculation of the EP and normal-value to be reliable.
Therefore, because we confirmed the accuracy and validity of the
information underlying the calculation of margins in the petition by
examining source documents as well as publicly available information,
we preliminarily determine that the margins in the petition are
reliable for the purposes of this investigation.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal as to
whether there are circumstances that would render a margin not
relevant. Where circumstances indicate that the selected margin is not
appropriate as AFA, the Department will disregard the margin and
determine an appropriate margin. See Fresh Cut Flowers From Mexico;
Final Results of Antidumping Duty Administrative Review, 61 FR 6812,
6814 (February 22, 1996) (the Department disregarded the highest
dumping margin as best information available because the margin was
based on another company's uncharacteristic business expense resulting
in an unusually high margin).
The rates in the petition reflect commercial practices of the nails
industry and, as such, are relevant to Tech Fast. The courts have
acknowledged that the consideration of the commercial behavior inherent
in the industry is important in determining the relevance of the
selected AFA rate to the uncooperative respondent by virtue of it
belonging to the same industry. See, e.g., Ferro Union, Inc. v. United
States, 44 F. Supp. 2d 1310, 1334 (1999). Such consideration typically
encompasses the commercial behavior of other respondents under
investigation and the selected AFA rate is gauged against the margins
we calculate for those respondents. Therefore, we compared the model-
specific margins we calculated for Dubai Wire and Precision Fasteners
for the POI to the petition rate of 61.54 percent, selected as AFA in
this investigation. We found that the highest model-specific margins we
calculated for Dubai Wire and Precision Fasteners in this investigation
were higher than or within the range of the 61.54 percent margin
alleged in the petition.
Specifically, after calculating the margin for Dubai Wire and
Precision Fasteners as discussed in detail below, we examined
individual model comparisons made by Dubai Wire and Precision Fasteners
during the POI and the margins we determined on those model comparisons
in order to determine whether the rate of 61.54 percent is probative.
We found a number of model comparisons with dumping margins above the
rate of 61.54 percent and a number of model comparisons with dumping
margins within the range of 61.54 percent. See company-specific
analysis memorandum, dated concurrently with this notice. Accordingly,
the AFA rate is relevant as applied to Tech Fast for this investigation
because it falls within the range of model-specific margins we
calculated for Dubai Wire and Precision Fasteners in this
investigation. A similar corroboration methodology has been upheld by
the court. See PAM, S.p.A. v. United States, 582 F.3d 1336, 1340 (Fed.
Cir. 2009). Further, it is consistent with our past practice. See
Narrow Woven Ribbons With Woven Selvedge From the People's Republic of
China: Final Determination of Sales at Less Than Fair Value, 75 FR
41808, 41811 (July 19, 2010).
Accordingly, by using information that was corroborated in the pre-
initiation stage of this investigation and preliminarily determining it
to be relevant for the uncooperative respondent in this investigation,
we have corroborated the AFA rate of 61.54 percent ``to the extent
practicable'' as provided in section 776(c) of the Act. See also 19 CFR
351.308(d).
Therefore, with respect to Tech Fast, we have used, as AFA, the
margin in the petition of 61.54 percent, as set forth in the notice of
initiation. See Initiation Notice at 23563.
Affiliation and Collapsing
Section 771(33)(F) of the Act defines affiliated persons as two or
more persons directly or indirectly controlling, controlled by, or
under common control with any person. We find that, based on record
evidence, Dubai Wire and Global Fasteners Limited (GFL), a producer of
screws, are affiliated pursuant to section 771(33)(F) of the Act.
Because our analysis of affiliation involves extensive use of business-
proprietary information, for a detailed discussion, see Memorandum to
Susan Kuhbach entitled ``Certain Steel Nails from the United Arab
Emirates--Whether Collapsing of Affiliated Producers is Warranted,''
dated October 27, 2011 (Collapsing Evaluation Memo).
Section 351.401(f) of the Department's regulations outlines the
criteria for collapsing (i.e., treating as a single entity) affiliated
producers for purposes of calculating a dumping margin. The regulations
state that we will treat two or more affiliated producers as a single
entity where (1) those producers have production facilities for similar
or identical products that would not require substantial retooling of
either facility in order to restructure manufacturing priorities and
(2) we conclude that there is a significant potential for the
manipulation of price or production. In identifying a significant
potential for the manipulation of price or production, the Department
may consider the following factors: (i) The level of common ownership;
(ii) the extent to which managerial employees or board members of one
firm sit on the board of directors of an affiliated firm; (iii) whether
operations are intertwined, such as through the sharing of sales
information, involvement in production and pricing decisions, the
sharing of facilities or employees, or significant transactions between
the affiliated producers. See 19 CFR 351.401(f)(2).
With respect to the first criterion of 19 CFR 351.401(f), the
information on the record indicates that GFL does not produce and/or
have the potential to produce merchandise identical or similar to
subject merchandise. Specifically, in producing screws, GFL's
production processes and equipment are not similar to those used by
Dubai Wire to produce nails. Thus, we find that substantial retooling
of GFL's facilities would be required to change the companies'
manufacturing priorities. See Collapsing Evaluation Memo. Because the
first criteria of 19 CFR 351.401(f) was not established, we need not
consider whether there is a significant potential for the manipulation
of price or production.
With respect to Precision Fasteners, we find that, based on record
evidence, it is not affiliated with Millennium Steel and Wire LLC.
Because our analysis of affiliation involves extensive use of business-
proprietary information, for a full discussion, see Precision Fasteners
analysis memorandum.
Allegation of Targeted Dumping
The statute allows the Department to employ the average-to-
transaction margin-calculation methodology under the following
circumstances: (1) There is a pattern of export prices that differ
significantly among purchasers, regions, or periods of time; (2) the
Department explains why such differences cannot be taken into account
using the average-to-average or transaction-to-transaction methodology.
See section 777A(d)(1)(B) of the Act.
[[Page 68133]]
On August 8, 2011, the petitioner submitted allegations of targeted
dumping with respect to Dubai Wire and Precision Fasteners, asserting
that the Department should apply the average-to-transaction methodology
to all reported U.S. sales in calculating the margins for these
companies. In its allegations, the petitioner asserts that there are
patterns of EPs for comparable merchandise that differ significantly
among purchasers, regions, and periods of time. The petitioner relied
on the Department's current version of the targeted-dumping test first
introduced in Certain Steel Nails from the United Arab Emirates: Notice
of Final Determination of Sales at Not Less Than Fair Value, 73 FR
33985 (June 16, 2008) (Nails), and used more recently in Certain Oil
Country Tubular Goods from the People's Republic of China: Final
Determination of Sales at Less Than Fair Value, Affirmative Final
Determination of Critical Circumstances and Final Determination of
Targeted Dumping, 75 FR 20335 (April 19, 2010) (OCTG).
Because our analysis includes business-proprietary information, for
a full discussion see Memorandum to Christian Marsh entitled ``Less-
Than-Fair-Value Investigation on Certain Steel Nails from the United
Arab Emirates: Targeted Dumping--Dubai Wire FZE,'' dated October 27,
2011, and Memorandum to Christian Marsh entitled ``Less-Than-Fair-Value
Investigation on Certain Steel Nails from the United Arab Emirates:
Targeted Dumping--Precision Fasteners, LLC'' dated October 27, 2011
(Targeted-Dumping Memos).
A. Targeted-Dumping Test
We conducted customer, region, and time-period analyses of targeted
dumping for both companies using the methodology we adopted in Nails as
modified in Bags,\2\ to correct a ministerial error, and as further
modified in Wood Flooring,\3\ to correct for additional ministerial
errors.
---------------------------------------------------------------------------
\2\ See Polyethylene Retail Carrier Bags From Taiwan:
Preliminary Determination of Sales at Less Than Fair Value and
Postponement of Final Determination, 74 FR 55183 (October 27, 2009)
(test unchanged in Polyethylene Retail Carrier Bags from Taiwan:
Final Determination of Sales at Less Than Fair Value, 75 FR 14569
(March 26, 2010)) (Bags).
\3\ See Multilayered Wood Flooring from the People's Republic of
China: Final Determination of Sales at Less Than Fair Value, 76 FR
64318 (October 18, 2011) (Wood Flooring) and accompanying Issues and
Decision Memorandum at Comment 4. See also Targeted-Dumping Memos
for more detail.
---------------------------------------------------------------------------
The methodology we employed involves a two-stage test; the first
stage addresses the pattern requirement and the second stage addresses
the significant-difference requirement. See section 777A(d)(1)(B)(i) of
the Act and Nails. In this test we made all price comparisons on the
basis of identical merchandise (i.e., by control number or CONNUM). The
test procedures are the same for the customer, regional, and time-
period allegations of targeted dumping. We based all of our targeted-
dumping calculations on the U.S. net price which we determined for U.S.
sales by Dubai Wire and Precision Fasteners in our standard margin
calculations. For further discussion of the test and the results, see
the Targeted-Dumping Memos.
As a result of our analysis, we preliminarily determine that there
is a pattern of EPs for comparable merchandise that differ
significantly among certain customers, regions, and time periods for
Dubai Wire and Precision Fasteners in accordance with section
777A(d)(1)(B)(i) of the Act and our practice as discussed in Nails.
Dubai Wire submitted comments arguing that there was no targeted
dumping. Dubai Wire's comments were filed a short period of time prior
to the preliminary determination and were complex and extensive in
nature. Accordingly, there has been insufficient time for interested
parties to comment and for us to analyze the comments fully. We will
consider Dubai Wire's comments in the context of the final
determination.
B. Price Comparison Method
Section 777A(d)(1)(B)(ii) of the Act states that the Department may
compare the weighted average of the normal value to EPs or constructed
export prices (CEPs) of individual transactions for comparable
merchandise if the Department explains why differences in the patterns
of EPs and CEPs cannot be taken into account using the average-to-
average methodology. As described above, we have preliminarily
determined that, with respect to sales by Dubai Wire and Precision
Fasteners applicable to certain customers, regions, and time periods,
there was a pattern of prices that differ significantly. We find,
however, that these differences can be taken into account using the
average-to-average methodology because the average-to-average
methodology does not mask differences in the patterns of prices between
the targeted and non-targeted groups by averaging low-priced sales to
the targeted group with high-priced sales to the non-targeted group.
See Section 777A(d)(1) of the Act. Therefore, for the preliminary
determination, we find that the standard average-to-average methodology
takes into account the price differences because the alternative
average-to-transaction methodology yields a difference in the margin
that is not meaningful relative to the size of the resulting margin.
See SAA, H.R. Doc. 103-316, vol. 1 (1994), at 843. Accordingly, for
this preliminary determination we have applied the standard average-to-
average methodology to all U.S. sales. See Certain Coated Paper
Suitable for High-Quality Print Graphics Using Sheet-Fed Presses From
Indonesia: Preliminary Determination of Sales at Less Than Fair Value
and Postponement of Final Determination, 75 FR 24885, 24888 (May 6,
2010) and Polyethylene Retail Carrier Bags From Indonesia: Final
Determination of Sales at Less Than Fair Value, 75 FR 16431 (April 1,
2010) and accompanying Issues and Decision Memorandum at Comment 1.
Date of Sale
The regulation at 19 CFR 351.401(i) states that the Department
normally will use the date of invoice, as recorded in the producer's or
exporter's records kept in the ordinary course of business, as the date
of sale. The regulation provides further that the Department may use a
date other than the date of the invoice if the Secretary is satisfied
that a different date better reflects the date on which the material
terms of sale are established. The Department has a long-standing
practice of finding that, where shipment date precedes invoice date,
shipment date better reflects the date on which the material terms of
sale are established. See, e.g., Notice of Final Determination of Sales
at Less Than Fair Value and Negative Final Determination of Critical
Circumstances: Certain Frozen and Canned Warmwater Shrimp From
Thailand, 69 FR 76918 (December 23, 2004), and accompanying Issues and
Decision Memorandum at Comment 10; see also Notice of Final
Determination of Sales at Less Than Fair Value: Structural Steel Beams
From Germany, 67 FR 35497 (May 20, 2002), and accompanying Issues and
Decision Memorandum at Comment 2.
Record evidence indicates that for certain sales made by Dubai
Wire, shipment date preceded the invoice date. Therefore, for such
sales we used the shipment date as the date of sale in accordance with
our practice.
Fair Value Comparisons
To determine whether sales of nails to the United States by Dubai
Wire and Precision Fasteners were made at LTFV during the POI, we
calculated EPs and normal values, as described in the ``U.S.
[[Page 68134]]
Price'' and ``Normal Value'' sections of this notice. As described in
the ``Allegation of Targeted Dumping'' section, above, we made the
comparisons of average EPs to normal value, based on constructed value,
for all of Dubai Wire's and Precision Fasteners' reported sales and
provided offsets for any non-dumped comparisons.
Product Comparisons
We have relied on 10 criteria for matching U.S. sales of subject
merchandise to normal value: nail form, product form, steel type,
surface finish, diameter, shank length, collation material, head style,
shank style, and heat treatment.
U.S. Price
In accordance with section 772(a) of the Act, we used EP for Dubai
Wire's and Precision Fasteners' U.S. sales where the subject
merchandise was sold directly to unaffiliated customers in the United
States prior to importation. We calculated EP based on the packed
``Free-on-Board,'' Cost and Freight,'' or ``Delivered, Duty Paid,''
price to unaffiliated purchasers in, or for exportation to, the United
States. We made deductions, as appropriate, for discounts and rebates.
We also made deductions for any movement expenses in accordance with
section 772(c)(2)(A) of the Act. See company-specific analysis
memorandum, dated concurrently with this notice.
Normal Value
A. Comparison-Market Viability
Section 773(a)(1) of the Act directs that normal value be based on
the price at which the foreign like product is sold in the comparison
market, provided that the merchandise is sold in sufficient quantities
(or value, if quantity is inappropriate) and that there is no
particular market situation that prevents a proper comparison with the
export price. Section 773(a)(1)(C) of the Act contemplates that
quantities (or values) will normally be considered insufficient if they
are less than five percent of the aggregate quantity (or value) of
sales of the subject merchandise to the United States.
In order to determine whether there was a sufficient volume of
sales in the home market or in the third country to serve as a viable
basis for calculating normal value, we compared each respondent's
volume of home-market and third-country sales of the foreign like
product to the respective volume of U.S. sales of the subject
merchandise in accordance with sections 773(a)(1)(B) and (C) of the
Act. For both Dubai Wire and Precision Fasteners, aggregate volumes of
sales of foreign like product in the home market or in the third-
country markets were not greater than five percent of each company's
sales of subject merchandise to the United States. Therefore, neither
company's sales in the home market or in the third-country markets are
viable as a comparison market. Consequently, we based normal value on
constructed value for both companies.
B. Calculation of Normal Value Based on Constructed Value
In accordance with section 773(a)(4) of the Act, we used
constructed value as the basis for normal value because neither company
had a viable comparison market. We calculated constructed value in
accordance with section 773(e) of the Act. We included the cost of
materials and fabrication, selling, general and administrative (G&A)
expenses, interest expenses, U.S. packing expenses, and profit in the
calculation of constructed value. We relied on respondents' submitted
materials and fabrication costs, G&A, interest expenses, and U.S.
packing costs, except where noted below. Based on our examination of
record evidence, Dubai Wire and Precision Fasteners did not appear to
experience significant changes in the cost of manufacturing during the
period of investigation. Therefore, we followed our normal methodology
of calculating an annual weighted-average cost.
For Dubai Wire, we reallocated fixed overhead to products by
calculating a new fixed overhead ratio and multiplying this ratio by
the reported direct labor and variable overhead of each product. We
calculated G&A expenses for Dubai Wire on an unconsolidated basis. We
analyzed the interest expense for loans between Dubai Wire and its
affiliate under the ``transactions disregarded rule'' of section
773(f)(2) of the Act, and determined that the loans were not at arm's
length rates. As a result, we included an imputed interest expense
amount associated with the non-arm's length affiliated party loans.
For Precision Fasteners, we reallocated the reported direct
material costs to products by weight-averaging the reported direct
material by steel type and surface finish to alleviate the issue of
cost differences unrelated to differences in physical characteristics.
We reallocated fixed overhead to products using the ratio of fixed
overhead costs to the reported direct labor and variable overhead
costs. For additional details on these adjustments, see memorandum to
Neal Halper from James Balog (Precision Fasteners) or Gary Urso (Dubai
Wire), entitled ``Cost of Production and Constructed Value Calculation
Adjustments for the Preliminary Determination'' dated concurrently with
this notice (Preliminary Determination Cost Calculation Memos).
Because Dubai Wire and Precision Fasteners did not have a viable
comparison market, we did not determine selling expenses and profit
under section 773(e)(2)(A) of the Act, instead relying on 773(e)(2)(B)
of the Act. The statute does not establish a hierarchy for selecting
among the alternative methodologies provided in section 773(e)(2)(B) of
the Act. See SAA at 840. Section 773(e)(2)(B)(iii) of the Act specifies
that profit and selling expenses may be calculated based on any other
reasonable method as long as the result is not greater than the amount
realized by exporters or producers ``in connection with the sale, for
consumption in the foreign country, of merchandise that is in the same
general category of products as the subject merchandise'' (i.e., the
profit cap).
For both Dubai Wire and Precision Fasteners, we used the profit
rate derived from the publicly available financial statements for the
fiscal year most contemporaneous with the POI for a company in the
United Arab Emirates, Arab Heavy Industries. See Exhibit 14 of April
11, 2011, supplement to the petition. This company produces products in
the same general category of merchandise as nails. Further, because
this source of information did not provide enough detail to calculate
selling expenses for Dubai Wire and Precision Fasteners, we used the
companies' respective company-wide selling-expense rates. See company-
specific analysis memorandum. We find that, absent alternatives, this
approach satisfies sufficiently the criteria of section 773(e) because
the selling expenses were derived for subject merchandise as well as
for products in the same general category as subject merchandise.
In the instant case, the profit cap cannot be calculated using the
available data because we do not have sales in the same general
category that would result in a profit cap that is reflective of sales
in the foreign country. Specifically, it is not clear whether the Arab
Heavy Industries financial statement includes only sales in the foreign
country. Therefore, because there is no other information available on
the record, as facts available, we are applying option (iii) of section
773(e)(2)(B) of the Act, without quantifying a profit cap.
[[Page 68135]]
When appropriate, we made adjustments to constructed value in
accordance with section 773(a)(8) of the Act, 19 CFR 351.410, and 19
CFR 351.412 for circumstance-of-sale differences. We calculated
constructed value without regard to level of trade with respect to EP
sales because neither company had a viable comparison market.
Currency Conversion
It is our normal practice to make currency conversions into U.S.
dollars in accordance with section 773A(a) of the Act based on exchange
rates in effect on the dates of the U.S. sales, as certified by the
Federal Reserve Bank.
Verification
As provided in section 782(i)(1) of the Act, we intend to verify
the information relied upon in making our final determination for Dubai
Wire and Precision Fasteners.
Suspension of Liquidation
In accordance with section 733(d)(2) of the Act, we will direct CBP
to suspend liquidation of all entries of nails from the UAE that are
entered, or withdrawn from warehouse, for consumption on or after the
date of publication of this notice in the Federal Register. We will
instruct CBP to require a cash deposit or the posting of a bond equal
to the weighted-average margins, as indicated below, as follows: (1)
The rates for Dubai Wire, Precision Fasteners, and Tech Fast will be
the rates we have determined in this preliminary determination; (2) if
the exporter is not a firm identified in this investigation but the
producer is, the rate will be the rate established for the producer of
the subject merchandise; (3) the rate for all other producers or
exporters will be 23.48 percent, as discussed in the ``All-Others
Rate'' section, below. These suspension-of-liquidation instructions
will remain in effect until further notice.
------------------------------------------------------------------------
Weighted-
average
Manufacturer/Exporter margin
(percent)
------------------------------------------------------------------------
Dubai Wire FZE............................................. 27.73
Precision Fasteners LLC.................................... 19.23
Tech Fast International Ltd................................ 61.54
------------------------------------------------------------------------
All-Others Rate
Section 735(c)(5)(A) of the Act provides that the estimated all-
others rate shall be an amount equal to the weighted average of the
estimated weighted-average dumping margins established for exporters
and producers individually investigated excluding any zero or de
minimis margins and any margins determined entirely under section 776
of the Act. Dubai Wire and Precision Fasteners are the only respondents
in this investigation for which we calculated a company-specific rate
that is not zero or de minimis or determined entirely under Section 776
of the Act. Therefore, because there are only two relevant weighted-
average dumping margins for this preliminary determination and because
using a weighted-average risks disclosure of business proprietary
information of Dubai Wire and Precision Fasteners, the ``all-others''
rate is a simple-average of these two values, which is 23.48 percent.
See Seamless Refined Copper Pipe and Tube From Mexico: Final
Determination of Sales at Less Than Fair Value, 75 FR 60723, 60724
(October 1, 2010).
Disclosure
We will disclose the calculations performed in our preliminary
determination to interested parties in this proceeding in accordance
with 19 CFR 351.224(b).
ITC Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of our preliminary affirmative determination. If the Department's
final determination is affirmative, the ITC will determine before the
later of 120 days after the date of this preliminary determination or
45 days after our final determination whether imports of nails from the
UAE are materially injuring, or threatening material injury to, the
U.S. industry (see section 735(b)(2) of the Act). Because we are
postponing the deadline for our final determination to 135 days from
the date of the publication of this preliminary determination, as
discussed below, the ITC will make its final determination no later
than 45 days after our final determination.
Public Comment
Interested parties are invited to comment on the preliminary
determination. Interested parties may submit case briefs to the
Department no later than seven days after the date of the issuance of
the last verification report in this proceeding. Rebuttal briefs, the
content of which is limited to the issues raised in the case briefs,
must be filed within five days from the deadline date for the
submission of case briefs. See 19 CFR 351.309(d). A list of authorities
used, a table of contents, and an executive summary of issues should
accompany any briefs submitted to the Department. See 19 CFR
351.309(c)(2). Executive summaries should be limited to five pages
total, including footnotes. Further, we request that parties submitting
briefs and rebuttal briefs provide the Department with a copy of the
public version of such briefs on diskette.
In accordance with section 774 of the Act, the Department will hold
a public hearing, if timely requested, to afford interested parties an
opportunity to comment on issues raised in case briefs, provided that
such a hearing is requested by an interested party. See also 19 CFR
351.310. If a timely request for a hearing is made in this
investigation, we intend to hold the hearing two days after the
deadline for filing a rebuttal brief. Parties should confirm by
telephone the date, time, and location of the hearing 48 hours before
the scheduled date.
Any interested party may request a hearing within 30 days of
publication of this notice. See 19 CFR 351.310(c). Hearing requests
should contain the following information: (1) The party's name,
address, and telephone number; (2) the number of participants; and (3)
a list of the issues to be discussed. Oral presentations will be
limited to issues raised in the briefs. If a request for a hearing is
made, parties will be notified of the time and date for the hearing to
be held at the U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230. See 19 CFR 351.310(d).
Postponement of Final Determination and Extension of Provisional
Measures
Section 735(a)(2) of the Act provides that a final determination
may be postponed until not later than 135 days after the date of the
publication of the preliminary determination if, in the event of an
affirmative preliminary determination, a request for such postponement
is made by exporters who account for a significant proportion of
exports of the subject merchandise or, in the event of a negative
preliminary determination, a request for such postponement is made by
the petitioner. Section 351.210(e)(2) of the Department's regulations
requires that requests by respondents for postponement of a final
determination be accompanied by a request for extension of provisional
measures from a four-month period to not more than six months.
On October 4, 2011, Dubai Wire and Precision Fasteners requested
that, in the event of an affirmative preliminary determination in this
investigation, the Department postpone its final determination by 60
days. At the same time, these companies requested that the Department
extend the application
[[Page 68136]]
of the provisional measures prescribed under section 733(d) of the Act
and 19 CFR 351.210(e)(2) from a four-month to a six-month period. In
accordance with section 735(a)(2) of the Act and 19 CFR 351.210(b)(2),
because (1) our preliminary determination is affirmative, (2) the
requesting exporters account for a significant proportion of exports of
the subject merchandise, and (3) no compelling reasons for denial
exist, we are granting this request and are postponing the final
determination until no later than 135 days after the publication of
this notice in the Federal Register. Suspension of liquidation will be
extended accordingly.
This determination is issued and published pursuant to sections
733(f) and 777(i)(1) of the Act.
Dated: October 27, 2011.
Paul Piquado,
Assistant Secretary for Import Administration.
Appendix I
Scope of the Investigation
The merchandise covered by this investigation includes certain
steel nails having a shaft length up to 12 inches. Certain steel
nails include, but are not limited to, nails made of round wire and
nails that are cut. Certain steel nails may be of one piece
construction or constructed of two or more pieces. Certain steel
nails may be produced from any type of steel, and have a variety of
finishes, heads, shanks, point types, shaft lengths and shaft
diameters. Finishes include, but are not limited to, coating in
vinyl, zinc (galvanized, whether by electroplating or hot-dipping
one or more times), phosphate cement, and paint. Head styles
include, but are not limited to, flat, projection, cupped, oval,
brad, headless, double, countersunk, and sinker. Shank styles
include, but are not limited to, smooth, barbed, screw threaded,
ring shank and fluted shank styles. Screw-threaded nails subject to
this investigation are driven using direct force and not by turning
the fastener using a tool that engages with the head. Point styles
include, but are not limited to, diamond, blunt, needle, chisel and
no point. Certain steel nails may be sold in bulk, or they may be
collated into strips or coils using materials such as plastic,
paper, or wire.
Certain steel nails subject to this investigation are currently
classified under the Harmonized Tariff Schedule of the United States
(HTSUS) subheadings 7317.00.55, 7317.00.65, and 7317.00.75.
Excluded from the scope of this investigation are steel nails
specifically enumerated and identified in ASTM Standard F 1667 (2005
revision) as Type I, Style 20 nails, whether collated or in bulk,
and whether or not galvanized.
Also excluded from the scope of this investigation are the
following products:
non-collated (i.e., hand-drive or bulk), two-piece
steel nails having plastic or steel washers (``caps'') already
assembled to the nail, having a bright or galvanized finish, a ring,
fluted or spiral shank, an actual length of 0.500'' to 8'',
inclusive; an actual shank diameter of 0.1015'' to 0.166'',
inclusive; and an actual washer or cap diameter of 0.900'' to
1.10'', inclusive;
non-collated (i.e., hand-drive or bulk), steel nails
having a bright or galvanized finish, a smooth, barbed or ringed
shank, an actual length of 0.500'' to 4'', inclusive; an actual
shank diameter of 0.1015'' to 0.166'', inclusive; and an actual head
diameter of 0.3375'' to 0.500'', inclusive, and whose packaging and
packaging marking are clearly and prominently labeled ``Roofing'' or
``Roof'' nails;
wire collated steel nails, in coils, having a
galvanized finish, a smooth, barbed or ringed shank, an actual
length of 0.500'' to 1.75'', inclusive; an actual shank diameter of
0.116'' to 0.166'', inclusive; and an actual head diameter of
0.3375'' to 0.500'', inclusive, and whose packaging and packaging
marking are clearly and prominently labeled ``Roofing'' or ``Roof''
nails;
non-collated (i.e., hand-drive or bulk), steel nails
having a convex head (commonly known as an umbrella head), a smooth
or spiral shank, a galvanized finish, an actual length of 1.75'' to
3'', inclusive; an actual shank diameter of 0.131'' to 0.152'',
inclusive; and an actual head diameter of 0.450'' to 0.813'',
inclusive, and whose packaging and packaging marking are clearly and
prominently labeled ``Roofing'' or ``Roof'' nails;
corrugated nails. A corrugated nail is made of a small
strip of corrugated steel with sharp points on one side;
thumb tacks, which are currently classified under HTSUS
7317.00.10.00;
fasteners suitable for use in powder-actuated hand
tools, not threaded and threaded, which are currently classified
under HTSUS 7317.00.20 and 7317.00.30;
certain steel nails that are equal to or less than
0.0720 inches in shank diameter, round or rectangular in cross
section, between 0.375 inches and 2.5 inches in length, and that are
collated with adhesive or polyester film tape backed with a heat
seal adhesive; and
fasteners having a case hardness greater than or equal
to 50 HRC, a carbon content greater than or equal to 0.5 percent, a
round head, a secondary reduced-diameter raised head section, a
centered shank, and a smooth symmetrical point, suitable for use in
gas-actuated hand tools.
While the HTSUS subheadings are provided for convenience and
customs purposes, the written description of the scope of this
investigation is dispositive.
Appendix II
Scope of the Investigation
The merchandise covered by this investigation includes certain
steel nails having a shaft length up to 12 inches. Certain steel
nails include, but are not limited to, nails made of round wire and
nails that are cut. Certain steel nails may be of one piece
construction or constructed of two or more pieces. Certain steel
nails may be produced from any type of steel, and have a variety of
finishes, heads, shanks, point types, shaft lengths and shaft
diameters. Finishes include, but are not limited to, coating in
vinyl, zinc (galvanized, whether by electroplating or hot-dipping
one or more times), phosphate cement, and paint. Head styles
include, but are not limited to, flat, projection, cupped, oval,
brad, headless, double, countersunk, and sinker. Shank styles
include, but are not limited to, smooth, barbed, screw threaded,
ring shank and fluted shank styles. Screw-threaded nails subject to
this investigation are driven using direct force and not by turning
the fastener using a tool that engages with the head. Point styles
include, but are not limited to, diamond, blunt, needle, chisel and
no point. Certain steel nails may be sold in bulk, or they may be
collated into strips or coils using materials such as plastic,
paper, or wire.
Certain steel nails subject to this investigation are currently
classified under the Harmonized Tariff Schedule of the United States
(HTSUS) subheadings 7317.00.55, 7317.00.65, and 7317.00.75.
Excluded from the scope of this investigation are steel nails
specifically enumerated and identified in ASTM Standard F 1667 (2011
revision) as Type I, Style 20 nails, whether collated or in bulk,
and whether or not galvanized.
Also excluded from the scope of this investigation are the
following products:
Non-collated (i.e., hand-drive or bulk), two-piece
steel nails having plastic or steel washers (``caps'') already
assembled to the nail, having a bright or galvanized finish, a ring,
fluted or spiral shank, an actual length of 0.500'' to 8'',
inclusive; an actual shank diameter of 0.1015'' to 0.166'',
inclusive; and an actual washer or cap diameter of 0.900'' to
1.10'', inclusive;
Non-collated (i.e., hand-drive or bulk), steel nails
having a bright or galvanized finish, a smooth, barbed or ringed
shank, an actual length of 0.500'' to 4'', inclusive; an actual
shank diameter of 0.1015'' to 0.166'', inclusive; and an actual head
diameter of 0.3375'' to 0.500'', inclusive;
Wire collated steel nails, in coils, having a
galvanized finish, a smooth, barbed or ringed shank, an actual
length of 0.500'' to 1.75'', inclusive; an actual shank diameter of
0.116'' to 0.166'', inclusive; and an actual head diameter of
0.3375'' to 0.500'', inclusive;
Non-collated (i.e., hand-drive or bulk), steel nails
having a convex head (commonly known as an umbrella head), a smooth
or spiral shank, a galvanized finish, an actual length of 1.75'' to
3'', inclusive; an actual shank diameter of 0.131'' to 0.152'',
inclusive; and an actual head diameter of 0.450'' to 0.813'',
inclusive;
Corrugated nails. A corrugated nail is made of a small
strip of corrugated steel with sharp points on one side;
Thumb tacks, which are currently classified under HTSUS
7317.00.10.00;
Fasteners suitable for use in powder-actuated hand
tools, not threaded and threaded, which are currently classified
under HTSUS 7317.00.20 and 7317.00.30;
Certain steel nails that are equal to or less than
0.0720 inches in shank diameter, round or rectangular in cross
section, between 0.375 inches and 2.5 inches in length, and that are
Collated with adhesive or polyester film tape backed with a heat
seal adhesive; and
[[Page 68137]]
fasteners having a case hardness greater than or equal
to 50 HRC, a carbon content greater than or equal to 0.5 percent, a
round head, a secondary reduced-diameter raised head section, a
centered shank, and a smooth symmetrical point, suitable for use in
gas-actuated hand tools.
While the HTSUS subheadings are provided for convenience and
customs purposes, the written description of the scope of this
investigation is dispositive.
[FR Doc. 2011-28542 Filed 11-2-11; 8:45 am]
BILLING CODE 3510-DS-P