Antidumping: Tin mill products from Japan,
[Federal Register: April 12, 2000 (Volume 65, Number 71)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF COMMERCE
International Trade Administration
Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Tin Mill Products From Japan
AGENCY: Import Administration, International Trade Administration, Department of Commerce.
EFFECTIVE DATE: April 12, 2000.
FOR FURTHER INFORMATION CONTACT: Samantha Denenberg or Linda Ludwig, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone (202) 482-1386 and (202) 482-3833, respectively.
The Applicable Statute and Regulations
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (``the Act'') by the Uruguay Round Agreements Act (``URAA''). In addition, unless otherwise indicated, all citations to the Department of Commerce (``Department'') regulations are to the regulations at 19 CFR part 351 (April 1999).
We preliminarily determine that Certain Tin Mill Products (``TMP'') from Japan are being, or are likely to be, sold in the United States at less than fair value (``LTFV''), as provided in section 733 of the Act. The estimated margins of sales at LTFV are shown in the ``Suspension of Liquidation'' section of this notice. For all the following companies, the Department has used adverse facts available for their estimated margin: Nippon Steel Corporation (``NSC''); Kawasaki Steel Corporation (``Kawasaki''); NKK Corporation (``NKK''); and Toyo Kohan (``Toyo''). See Case History section.
On November 17, 1999, the Department initiated an antidumping duty investigation on imports of Certain Tin Mill Products from Japan (Notice of Initiation of Antidumping Investigations: Certain Tin Mill Products from Japan (64 FR 66892 (November 30, 1999)) (``Initiation Notice''). Since the initiation of this investigation the following events have occurred.
The Department set aside a period for all interested parties to raise issues regarding product coverage (see 64 FR 69730 (December 14, 1999)). Throughout the months of January and February, the Department received numerous filings from respondents (i.e., Kawasaki, NKK, NSC) and other interested parties (i.e., H.J. Heinz Co.; Silgan Containers Corp.; ITOCHU International; Maui Pineapple Co., Ltd.; NAPP Systems, Inc.; Reynolds Metals Co.; Fuji Photo Film, Inc.; Mitsui & Co. (U.S.A.), Inc.; Eastman Kodak Co.; and Berlin Metals Inc.). On January 27, 2000 and February 7, 2000, Weirton Steel Corporation, the Independent Steelworkers Union, and the United Steelworkers of America, AFL-CIO (collectively ``petitioners''), submitted comments to the Department requesting that the scope exclude certain TMP from the scope of the investigation. On March 13, 2000, March 31, 2000, and April 3, 2000, petitioners filedletters agreeing to amend the scope of the investigation to exclude various types of tin mill products (see Scope Amendment Memorandum from Richard Weible to Joseph A. Spetrini, April 5, 2000).
On December 3, 1999, petitioners submitted a proposal for model match criteria. On December 15, 1999, the Department issued proposed model match criteria to all interested parties. On December 22 and December 29, 1999, NKK and NSC submitted comments on our proposed model matching criteria.
On December 20, 1999, the United States International Trade Commission (``ITC'') notified the Department of its affirmative preliminary injury determination on imports of subject merchandise from Japan. On December 21, 1999, the ITC published its preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of imports of the subject merchandise from Japan (64 FR 71497).
On November 30, 1999, the Department issued Section A of its antidumping duty questionnaire to NSC, Kawasaki, NKK, and Toyo. On December 15, 1999, the Department again issued Section A of the antidumping duty questionnaire to Toyo's headquarters in Japan because Toyo no longer had legal representation. On December 14, 1999, the Department received NKK and Kawasaki's responses to Question 1 of Section A. On December 15, 1999, the Department received MITI's response to the Department's request for information on the Japanese producers. On December 15, 1999, NSC informed the Department that it would not be participating in the TMP investigation. On December 21, 1999, Toyo informed the Department that it would not be participating in the TMP investigation.
On January 5, 2000, the Department issued Sections B-E of its antidumping duty questionnaire to Kawasaki and NKK. On January 20, 2000, petitioners filedcomments on Kawasaki's section A response. On January 21, 2000, petitioners filedcomments on NKK's section A response. On February 11, 2000 both Kawasaki and NKK informed the Department that they would not be participating in the TMP investigation.
Scope of Investigation
The scope of this investigation includes tin mill flat-rolled products that are coated or plated with tin, chromium or chromium oxides. Flat-rolled steel products coated with tin are known as tin plate. Flat-rolled steel products coated with chromium or chromium oxides are known as tin-free steel or electrolytic chromium-coated steel. The scope includes all the noted tin mill products regardless of thickness, width, form (in coils or cut sheets), coating type (electrolytic or otherwise), edge (trimmed, untrimmed or further processed, such and scroll cut), coating thickness, surface finish, temper, coating metal (tin, chromium, chromium oxide), reduction (single- or double-reduced), and whether or not coated with a plastic material.
All products that meet the written physical description are within the scope of this investigation unless specifically excluded. The following
products, by way of example, are outside and/or specifically excluded from the scope of this investigation:
Single reduced electrolytically chromium coated steel with a thickness 0.238 mm (85 pound base box) (10%) or 0.251 mm (90 pound base box) (10%) or 0.255 mm (10%) with 770 mm (minimum width) (-0/+1.588 mm) by 900 mm (maximum length if sheared) sheet size or 30.6875 inches (minimum width) (-0/+ \1/16\ inch) and 35.4 inches (maximum length if sheared) sheet size; with type MR or higher (per ASTM) A623 steel chemistry; batch annealed at T2\1/2\ anneal temper, with a yield strength of 31 to 42 kpsi (214 to 290 Mpa); with a tensile strength of 43 to 58 kpsi (296 to 400 Mpa); with a chrome coating restricted to 32 to 150 mg/m\2\; with a chrome oxide coating restricted to 6 to 25 mg/m\2\ with a modified 7B ground roll finish or blasted roll finish; with roughness average (Ra) 0.10 to 0.35 micrometers, measured with a stylus instrument with a stylus radius of 2 to 5 microns, a trace length of 5.6 mm, and a cut-off of 0.8 mm, and the measurement traces shall be made perpendicular to the rolling direction; with an oil level of 0.17 to 0.37 grams/base box as type BSO, or 2.5 to 5.5 mg/m\2\ as type DOS, or 3.5 to 6.5 mg/m\2\ as type ATBC; with electrical conductivity of static probe voltage drop of 0.46 volts drop maximum, and with electrical conductivity degradation to 0.70 volts drop maximum after stoving (heating to 400 degrees F for 100 minutes followed by a cool to room temperature).
Single reduced electrolytically chromium or tin-coated steel in the gauges of 0.0040 inch nominal, 0.0045 inch nominal, 0.0050 inch nominal, 0.0061 inch nominal (55 pound base box weight), 0.0066 inch nominal (60 pound base box weight), and 0.0072 inch nominal (65 pound base box weight), regardless of width, temper, finish, coating or other properties.
Single reduced electrolytically chromium coated steel in the gauge of 0.024 inch, with widths of 27.0 inches or 31.5 inches, and with T-1 temper properties.
Single reduced electrolytically chromium coated steel, with a chemical composition of 0.005% max carbon, 0.030% max silicon, 0.25% max manganese, 0.025% max phosphorous, 0.025% max sulfur, 0.070% max aluminum, and the balance iron, with a metallic chromium layer of 70-130 mg/m\2\, with a chromium oxide layer of 5-30 mg/m\2\, with a tensile strength of 260-440 N/mm\2\, with an elongation of 28-48%, with a hardness (HR-30T) of 40-58, with a surface roughness of 0.5-1.5 microns Ra, with magnetic properties of Bm (KG) 10.0 minimum, Br (KG) 8.0 minimum, Hc (Oe) 2.5-3.8, and 1400 minimum, as measured with a Riken Denshi DC magnetic characteristic measuring machine, Model BHU-60.
Bright finish tin-coated sheet with a thickness equal to or exceeding 0.0299 inch, coated to thickness of \3/4\ pound (0.000045 inch) and 1 pound (0.00006 inch).
The merchandise subject to this investigation is classified in the Harmonized Tariff Schedule of the United States (``HTSUS''), under HTSUS subheadings 7210.11.0000, 7210.12.0000, 7210.50.0000, 7212.10.0000, and 7212.50.0000 if of non-alloy steel and under HTSUS subheadings 7225.99.0090, and 7226.99.0000 if of alloy steel. Although the subheadings are provided for convenience and Customs purposes, our written description of the scope of this investigation is dispositive.
Period of Investigation
The Period of Investigation (``POI'') is October 1, 1998 through September 30, 1999.
Section 776(a)(2) of the Act provides that, if an interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall use facts otherwise available in reaching the applicable determination.
In this case, NSC and Toyo indicated that they would not participate in the Department's investigation and did not provide the Department with information requested and needed to calculate a dumping margin. Therefore, we determine that NSC and Toyo withheld information requested by the Department. Accordingly, the Department finds it necessary to use the facts otherwise available for these respondents in accordance with section 776(a)(2)(A) of the Act.
With respect to Kawasaki and NKK, both companies responded to Section A of the Department's questionnaire. However, both companies failed to respond to Sections B-C of the Department's questionnaire. On February 11, 2000, Kawasaki and NKK informed the Department that they would not be submitting responses to section B-C of the Department's questionnaire. Therefore, the Department determines that Kawasaki and NKK withheld information requested by the Department. Because the Department is lacking complete information, we find it necessary to use the facts otherwise available for Kawasaki and NKK in accordance with section 776(a)(2)(A) of the Act.
In selecting from among the facts otherwise available, section 776(b) of the Act provides that adverse inferences may be used when a party has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information. See also Statement of Administrative Action accompanying the URAA, H.R. Rep. No. 103-316, Vol. I, at 870 (1994) (``SAA''). In this case, NSC and Toyo completely failed to respond to the Department's questionnaires notwithstanding warnings under section 782(d) that the information was necessary and that failure to provide it could result in the use of the facts available. Further, the companies indicated that they would not participate in the Department's investigation. Because of the companies' complete lack of participation in this investigation, we find that the companies failed to cooperate to the best of their abilities, and that section 782(e) of the Act does not apply. Accordingly, when selecting among the facts available, we find that the use of an adverse inference is warranted in accordance with section 776(b) of the Act.
With respect to Kawasaki and NKK, while the companies did respond to the Department's section A questionnaires, neither company responded to the Department's Sections B-C questionnaires. In light of these facts, the Department finds that Kawasaki and NKK failed to act to the best of their abilities to comply with the Department's requests for information under section 776(b) of the Act. Because of this finding, section 782(e) of the Act is not applicable. Thus, the Department has determined that, in selecting among the facts otherwise available, an adverse inference is warranted for these companies as well.
Section 776(b) states that an adverse inference may include reliance on information derived from the petition or any other information placed on the record. See also SAA at 829-831. As adverse facts available, the Department is assigning to NSC, Kawasaki, NKK, and Toyo a dumping margin of 95.29 percent, which was calculated from petition information placed on the record by petitioners on October 28, 1999 and November 8, 1999, and represents the highest petition margin.
As explained in detail in the ``Corroboration'' section below, we are using this information because it represents the best price-to-price comparison on the record. Further, the Department determines that use of this margin accomplishes the statute's aim of encouraging participation. As the SAA provides, where a party has not cooperated in a proceeding:
Commerce * * * may employ adverse inferences about the missing information to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully. In employing adverse inferences, one factor the agencies will consider is the extent to which a party may benefit from its own lack of cooperation. SAA at 870.
Section 776(c) of the Act provides that, when the Department relies on secondary information (which includes information from the petition) in using the facts otherwise available, it must, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal.
The SAA clarifies that ``corroborate'' means that the Department will satisfy itself that the secondary information to be used has probative value. See SAA at 870. The SAA also states that independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation. See SAA at 870.
We reviewed the adequacy and accuracy of the information in the petition during our pre-initiation analysis of the petition, to the extent appropriate information was available for this purpose. See Import Administration Antidumping Duty (``AD'') Investigation Initiation Checklist (November 17, 1999), for a discussion of the margin calculations in the petition. In addition, in order to determine the probative value of the margins in the petition in accordance with section 776(c) of the Act, we examined the key elements of the export price (``EP'') and normal value (``NV'') calculations on which the margins in the petition were based. Petitioners constructed normal values based on the average prices of tin mill products sold in Japan by NSC to large end users during June 1999. Petitioners determined that, because NSC is the largest producer of the subject merchandise in the Japanese market, NSC's prices would be representative of the normal value in the Japanese tin mill market. The Japanese home market prices for five sample models of tin plate products and thirteen sample models of tin free steel were obtained by foreign market research consultants in Japan. The prices used in the calculation of NV were delivered, VAT exclusive prices. Petitioners derived NV by deducting a commission from the delivered price, which represents payment made to large trading companies. Petitioners also deducted expenses for freight, handling, and other movement related expenses such as storage during transportation and tolls. For the calculation of dumping margins, petitioners compared the average unit value for all five sample sales of tin plate to the average customs value for the corresponding HTSUS item for the month of June 1999, and the average unit value for all thirteen sample sales of tin free steel to the average customs value for the corresponding HTSUS item for the month of June 1999.
The estimated dumping margins in the petition were based on a comparison between NSC's home market prices and U.S. prices derived from IM-145 statistics. The Department determined the adequacy and accuracy of the information from which the petition margins were calculated by reviewing all of the data presented and by requesting clarification and confirmation from petitioners and their sources as needed (see Petition on Certain Tin Mill Products from Japan: Deficiency Questionnaire, November 3, 1999). As the EP values were derived by using IM-145 statistics, the Department notes that no further corroboration is necessary because the source is official U.S. import statistics (see Notice of Final Determination of Sales at Less Than Fair Value: Collated Roofing Nails from the People's Republic of China, 62 FR 51410, 51412 (October 1, 1997)). Our review of the EP and NV calculations indicated that the information in the petition has probative value, as relevant information included in the margin calculations in the petition are from public sources concurrent with the POI (e.g., IM-145 statistics and interest rates).
Section 735(c)(5)(B) of the Act provides that, where the estimated weighted-average dumping margins established for all exporters and producers individually investigated are zero or de minimis or are determined entirely under section 776 of the Act, the Department may use any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated. Our recent practice under these circumstances has been to assign as the ``all others'' rate the simple average of the margins in the petition. See Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Plate in Coil from Canada, 64 FR 15457 (March 31, 1999); Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Plate in Coil from Italy, 64 FR 15458, 15459 (March 21, 1999).
We are basing the ``all others'' rate on the simple average of margins in the petition, including information placed on the record by petitioners on November 8, 1999, which is 32.52 percent (see Memorandum of Analysis for the Preliminary Results of the Antidumping Duty Investigation of Certain Tin Mill Products from Japan, April 5, 2000).
Suspension of Liquidation
In accordance with section 733(d) of the Act, we are directing the Customs Service to suspend liquidation of all imports of subject merchandise 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 the Customs Service to require a cash deposit or the posting of a bond equal to the dumping margin indicated in the chart below. These suspension-of-liquidation instructions will remain in effect until further notice. The dumping margins are as follows:
Exporter/Manufacturer: Kawasaki Steel Corporation................................ 95.29 Nippon Steel Corporation.................................. 95.29 NKK Corporation........................................... 95.29 Toyo Kohan................................................ 95.29 All Others................................................ 32.52
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our 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 these imports are materially injuring, or threaten material injury to, the U.S. industry.
Case briefs or other written comments may be submitted to the Assistant Secretary for Import Administration no later than thirty days after the date of publication of this notice, and rebuttal briefs, limited to issues raised in case briefs, no later than thirty-five days after publication of this notice. A list of authorities used and an executive summary of issues should accompany
any briefs submitted to the Department. Such summary should be limited to five pages total, including footnotes. In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. Tentatively, the hearing will be held thirty- seven days after publication of this notice, time and room to be determined, at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If this investigation proceeds normally, we will make our final determination no later than 75 days after this preliminary determination.
This determination is issued and published in accordance with sections 733(d) and 777(i)(1) of the Act.
Dated: April 5, 2000. Joseph A. Spetrini, Acting Assistant Secretary for Import Administration.
[FR Doc. 00-9106Filed4-11-00; 8:45 am]
BILLING CODE 3510-DS-P