Antidumping: Stainless Steel Sheet and Strip in Coils from Taiwan
Federal Register: August 5, 2009 (Volume 74, Number 149)
Notices
Page 39055-39062
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr05au09-50
DEPARTMENT OF COMMERCE
International Trade Administration
A-583-831
Stainless Steel Sheet and Strip in Coils From Taiwan: Preliminary
Results and Rescission in Part of Antidumping Duty Administrative
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on stainless steel sheet and strip in coils (SSSSC) from Taiwan with respect to three companies. Only one respondent, Chia Far Industrial Factory Co., Ltd.
(Chia Far), is participating in this review; the remaining two companies reported that they had no shipments of subject merchandise during the period of review (POR). The POR is July 1, 2007, through
June 30, 2008.
We preliminarily determine that Chia Far made sales below normal value (NV). Moreover, we are preliminarily rescinding the review with respect to the companies that submitted no-shipment responses.
If the preliminary results are adopted in our final results of this administrative review, we will instruct U.S. Customs and Border
Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on the preliminary results.
DATES: Effective Date: August 5, 2009.
FOR FURTHER INFORMATION CONTACT: Henry Almond, AD/CVD Operations,
Office 2, Import Administration--Room 1870, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482- 0049.
SUPPLEMENTARY INFORMATION:
Background
On July 27, 1999, the Department published in the Federal Register the antidumping duty order on SSSSC from Taiwan. See Notice of
Antidumping Duty Order; Stainless Steel Sheet and Strip in Coils From
United Kingdom, Taiwan, and South Korea, 64 FR 40555 (July 27, 1999)
(SSSSC Order). On July 11, 2008, the Department published in the
Federal Register a notice of opportunity to request administrative review of this order. See Antidumping or Countervailing Duty Order,
Finding, or Suspended Investigation; Opportunity to Request
Administrative Review, 73 FR 39948 (July 11, 2008).
On July 31, 2008, the petitioners \1\ submitted a timely request for the Department to conduct an administrative review of the sales of
SSSSC made during the POR by the following 20 companies: Chain Chon
Industrial Co., Ltd.; Chia Far; Chien Shing Stainess Co.; China Steel
Corporation; Dah Shi Metal Industrial Co., Ltd.; Emerdex Group; Emerdex
Stainless Flat-Rolled Products, Inc.; Emerdex Stainless Steel, Inc.;
KNS Enterprise Co., Ltd.; Lih Chan Steel Co., Ltd.; Maytun
International Corp.; PFP Taiwan Co., Ltd.; Shih Yuan Stainess Steel
Enterprise Co., Ltd.; Ta Chen Stainless Pipe Co., Ltd. (Ta Chen); Tang
Eng Iron Works; Waterson Corp.; Well Harvest Metal Co., Ltd.; Yieh
Loong Enterprise Co., Ltd. (aka Chung Hung Steel Co., Ltd.); Yieh Mau
Corp.; and Yieh United Steel Corporation (YUSCO), pursuant to section 751(a) of the Tariff Act of 1930, as amended (the Act), and in accordance with 19 CFR 351.213(b)(1).
\1\ The petitioners are Allegheny Ludlum Corporation, AK Steel
Corporation, North American Stainless, United Auto Workers Local 3303, United Steelworkers of America, AFL-CIO/CLC, and Zanesville
Armco Independent Organization.
In August 2008, the Department published a notice of initiation of administrative review covering each of these 20 companies. See
Initiation of Antidumping and Countervailing Duty Administrative
Reviews, 73 FR 50308, 50309 (Aug. 26, 2008) (Initiation Notice).
In our initiation notice we indicated that we would select mandatory respondents for review based upon CBP entry data. See
Initiation Notice, 73 FR at 50308. In September 2008, we released relevant CBP data to interested parties, and we received comments on the issue of respondent selection from the petitioners. Also in that month we received a statement from Ta Chen indicating that it had no shipments of subject merchandise to the United States during the POR.
Also in September 2008, the petitioners withdrew their request for administrative review with respect to the following 17 companies: Chain
Chon Industrial Co., Ltd.; Chien Shing Stainess Co.; China Steel
Corporation; Dah Shi Metal Industrial Co., Ltd.; Emerdex Group; Emerdex
Stainless Flat-Rolled Products, Inc.; Emerdex Stainless Steel, Inc.;
KNS Enterprise Co., Ltd.; Lih Chan Steel Co., Ltd.; Maytun
International Corp.; PFP Taiwan Co., Ltd.; Shih Yuan Stainess Steel
Enterprise Co., Ltd.; Tang Eng Iron Works; Waterson Corp.; Well Harvest
Metal Co., Ltd.; Yieh Loong Enterprise Co., Ltd. (aka Chung Hung Steel
Co., Ltd.); and Yieh Mau Corp.
In October 2008, the Department issued the antidumping duty questionnaire to two remaining respondents, Chia Far and YUSCO, and we issued a letter to Ta Chen requesting additional information regarding its no-shipment statement. Ta Chen responded to our request in the same month by providing the requested information. Also in October 2008,
YUSCO provided a statement indicating that it had no shipments of subject merchandise to the United States during the POR. For further discussion, see the ``Partial Rescission of Review'' section of this notice.
Subsequent to Ta Chen's October response, the petitioners alleged that Ta Chen was engaged in middleman dumping of merchandise produced by Tung Mung Development Co. (Tung Mung), a Taiwanese producer of SSSSC which is excluded from the order. See Notice of Correction to the
Amended Final Determination in Accordance With Court Decision in the
Antidumping Duty Investigation of Stainless Steel Sheet and Strip in
Coils From Taiwan, 70 FR 17658 (April 7, 2005). In November 2008, Ta
Chen denied the petitioners' allegations, stating that Ta Chen
International (TCI), a U.S. affiliate of Ta Chen, purchased and imported the SSSSC directly from Tung Mung and consequently that Ta
Chen did not act as a middleman in these transactions. For further discussion, see the ``Middleman Dumping'' section of this notice.
During the period October through December 2008, we received Chia
Far's responses to sections A through D of the questionnaire.
In December 2008, we issued a supplemental questionnaire covering section D of the questionnaire (i.e., the section covering cost of production (COP)). Chia Far responded to this supplemental questionnaire in January 2009.
In March 2009, we published a notice extending the time limit for completion of the preliminary results. See Stainless Steel Sheet and
Strip in Coils from Japan and Taiwan: Notice of Extension of Time Limit for Preliminary Results of
Page 39056
the 2007-2008 Administrative Reviews, 74 FR 10885 (Mar. 13, 2009).
In April 2009, we issued supplemental questionnaires covering sections A through C and a second supplemental questionnaire covering section D to Chia Far. We received Chia Far's responses to the supplemental questionnaires in April and May 2009.
In June and July 2009, the petitioners submitted additional comments requesting that the Department treat Ta Chen as a middleman for sales between Tung Mung and TCI.
Period of Review
The POR is July 1, 2007, through June 30, 2008.
Scope of the Order
The products covered by the order are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (e.g., cold-rolled, polished, aluminized, coated, etc.) provided that it maintains the specific dimensions of sheet and strip following such processing.
The merchandise subject to the order is classified in the
Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 7219.13.00.31, 7219.13.00.51, 7219.13.00.71, 7219.13.00.81, 7219.14.00.30, 7219.14.00.65, 7219.14.00.90, 7219.32.00.05, 7219.32.00.20, 7219.32.00.25, 7219.32.00.35, 7219.32.00.36, 7219.32.00.38, 7219.32.00.42, 7219.32.00.44, 7219.33.00.05, 7219.33.00.20, 7219.33.00.25, 7219.33.00.35, 7219.33.00.36, 7219.33.00.38, 7219.33.00.42, 7219.33.00.44, 7219.34.00.05, 7219.34.00.20, 7219.34.00.25, 7219.34.00.30, 7219.34.00.35, 7219.35.00.05, 7219.35.00.15, 7219.35.00.30, 7219.35.00.35, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60, 7219.90.00.80, 7220.12.10.00, 7220.12.50.00, 7220.20.10.10, 7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 7220.20.70.05, 7220.20.70.10, 7220.20.70.15, 7220.20.70.60, 7220.20.70.80, 7220.20.80.00, 7220.20.90.30, 7220.20.90.60, 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80.
Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise under the order is dispositive.
Excluded from the scope of the order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (i.e., flat-rolled stainless steel products of a thickness of 4.75 mm or more), (4) flat wire (i.e., cold-rolled sections, with a prepared edge, rectangular in shape, of a width of not more than 9.5 mm), and (5) razor blade steel. Razor blade steel is a flat-rolled product of stainless steel, not further worked than cold-rolled (cold- reduced), in coils, of a width of not more than 23 mm and a thickness of 0.266 mm or less, containing, by weight, 12.5 to 14.5 percent chromium, and certified at the time of entry to be used in the manufacture of razor blades. See Chapter 72 of the HTSUS, ``Additional
U.S. Note'' 1(d).
Also excluded from the scope of the order are certain specialty stainless steel products described below. Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less.
The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of the order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of the order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as Arnokrome III.\2\
\2\ Arnokrome III is a trademark of the Arnold Engineering
Company.
Certain electrical resistance alloy steel is also excluded from the scope of the order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as
Gilphy 36.\3\
\3\ Gilphy 36 is a trademark of Imphy, S.A.
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of the order. This high-strength, ductile stainless
Page 39057
steel product is designated under the Unified Numbering System as
S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as Durphynox 17.\4\
\4\ Durphynox 17 is a trademark of Imphy, S.A.
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of the order. These include stainless steel strip in coils used in the production of textile cutting tools (e.g., carpet knives).\5\ This steel is similar to AISI grade 420 but containing, by weight, 0.5 to 0.7 percent of molybdenum. The steel also contains, by weight, carbon of between 1.0 and 1.1 percent, sulfur of 0.020 percent or less, and includes between 0.20 and 0.30 percent copper and between 0.20 and 0.50 percent cobalt. This steel is sold under proprietary names such as GIN4 Mo. The second excluded stainless steel strip in coils is similar to AISI 420-J2 and contains, by weight, carbon of between 0.62 and 0.70 percent, silicon of between 0.20 and 0.50 percent, manganese of between 0.45 and 0.80 percent, phosphorus of no more than 0.025 percent and sulfur of no more than 0.020 percent.
This steel has a carbide density on average of 100 carbide particles per 100 square microns. An example of this product is GIN5 steel. The third specialty steel has a chemical composition similar to AISI 420 F, with carbon of between 0.37 and 0.43 percent, molybdenum of between 1.15 and 1.35 percent, but lower manganese of between 0.20 and 0.80 percent, phosphorus of no more than 0.025 percent, silicon of between 0.20 and 0.50 percent, and sulfur of no more than 0.020 percent. This product is supplied with a hardness of more than Hv 500 guaranteed after customer processing, and is supplied as, for example, GIN6.\6\
\5\ This list of uses is illustrated and provided for descriptive purposes only.
\6\ GIN4 Mo, GIN5 and GIN6 are the proprietary grades of Hitachi
Metals America, Ltd.
Partial Rescission of Review
On September 25, 2008, the petitioners withdrew their request for administrative review with respect to the following 17 companies within the time limits set forth in 19 CFR 351.213(d)(1): (1) Chain Chon
Industrial Co., Ltd.; (2) Chien Shing Stainless Co.; (3) China Steel
Corporation; (4) Dah Shi Metal Industrial Co., Ltd.; (5) Emerdex Group;
(6) Emerdex Stainless Flat-Rolled Products, Inc.; (7) Emerdex Stainless
Steel, Inc.; (8) KNS Enterprise Co., Ltd.; (9) Lih Chan Steel Co.,
Ltd.; (10) Maytun International Corp.; (11) PFP Taiwan Co., Ltd.; (12)
Shih Yuan Stainess Steel Enterprise Co., Ltd.; (13) Tang Eng Iron
Works; (14) Waterson Corp.; (15) Well Harvest Metal Co., Ltd.; (16)
Yieh Loong Enterprise Co., Ltd. (aka Chung Hung Steel Co., Ltd.); and
(17) Yieh Mau Corp. Section 351.213(d)(1) of the Department's regulations requires that the Secretary rescind an administrative review if a party requesting a review withdraws the request within 90 days of the date of publication of the notice of initiation. Therefore, in accordance with 19 CFR 351.213(d)(1), because the request for administrative review with respect to the companies listed above was timely withdrawn, we are rescinding this review with regard to those companies.
Further, as noted in the ``Background'' section above, another respondent, YUSCO, certified to the Department that it had no shipments/entries of subject merchandise into the United States during the POR. The Department subsequently confirmed with CBP the no-shipment claim made by YUSCO. See the November 13, 2008, Memorandum to the File from Henry Almond, Analyst, entitled, ``2007-2008 Administrative Review of Stainless Steel Sheet and Strips in Coils from Taiwan: Entry
Information from U.S. Customs and Border Protection (CBP).'' Because the evidence on the record indicates that YUSCO did not export subject merchandise to the United States during the POR, we preliminarily determine that it is appropriate to rescind the review for YUSCO, in accordance with 19 CFR 351.213(d)(3), and is consistent with the
Department's practice. See, e.g., Stainless Steel Sheet and Strip in
Coils from Taiwan: Preliminary Results and Preliminary Rescission in
Part of Antidumping Duty Administrative Review, 73 FR 45393, 45395
(Aug. 5, 2008) (2006-2007 Preliminary Results), unchanged in Stainless
Steel Sheet and Strip in Coils From Taiwan: Final Results and
Rescission in Part of Antidumping Duty Administrative Review, 73 FR 74704,74706 (Dec. 9, 2008) (2006-2007 Final Results); and Chia Far
Indus. Factory Co., Ltd. v. United States, 343 F. Supp 2d 1344, 1374
(2004). Finally, as noted above, Ta Chen also certified to the
Department that it had no shipments/entries of subject merchandise into the United States during the POR. As with YUSCO, we confirmed with CBP that Ta Chen had no shipments/entries of subject merchandise during the
POR. See the September 9, 2008, Memorandum to the File from Henry
Almond, Analyst, entitled ``Release of Additional Customs Entry Data from CBP.'' Because we preliminarily find that Ta Chen did not act as a middleman via imports by its U.S. affiliate, TCI, we are also preliminarily rescinding this review with respect to Ta Chen. For further discussion of this issue, see the ``Middleman Dumping'' section, below.
Middleman Dumping
In response to Ta Chen's certification that it had no shipments of subject merchandise during the POR, on September 18, 2008, the petitioners alleged that Ta Chen was engaged in middleman dumping by virtue of the fact that its U.S. affiliate, TCI, purchased and imported
SSSSC from a Taiwanese producer/exporter during the POR. Specifically, the petitioners alleged that merchandise produced and exported by Tung
Mung, a company whose exports of SSSSC are excluded from the antidumping duty order, and imported by TCI is subject to a middleman dumping enquiry because: (1) The Department previously found that Ta
Chen acted as a middleman with respect to certain shipments from Tung
Mung to the United States; and, (2) Ta Chen acts as a de facto middleman for Tung Mung sales to TCI by virtue of the fact that TCI is a wholly-owned subsidiary of Ta Chen.
On October 1, 2008, we requested that Ta Chen provide additional information about its role in the sales at issue, as well as explain why it believed the transactions at issue were not properly subject to a middleman dumping investigation. On October 7, 2008, Ta Chen responded to this questionnaire stating that Ta Chen played no role in the transactions. Specifically, Ta Chen stated that TCI negotiated directly with Tung Mung for these transactions and paid Tung Mung directly, and that Tung Mung acted as the exporter of record and TCI acted as the importer of record
Page 39058
for the sales in question. Further, Ta Chen argued that the
Department's middleman dumping practice does not extend to direct sales from a foreign producer to an unaffiliated U.S. customer. Ta Chen further stated that in the less-than-fair-value (LTFV) investigation, the Department did not apply its middleman dumping methodology to this channel of direct sales from Tung Mung to TCI.
On October 24, 2008, June 5 and July 13, 2009, the petitioners submitted additional comments with respect to this issue. Ta Chen responded to the former comments on November 4, 2008, and did not respond to the latter. After considering the petitioners' allegation and their additional comments, as well as the information submitted by
Ta Chen, we preliminarily find that Ta Chen did not act as a middleman because there is no evidence on the record demonstrating that Ta Chen was involved in the export transactions at issue. See the October 7 and
November 4, 2008, Letters from Ta Chen regarding Middleman Dumping; and the January 14, 2008, Memorandum to the File from Henry Almond,
Analyst, entitled, ``2007-2008 Administrative Review of Stainless Steel
Sheet and Strip in Coils from Taiwan: Entry Documents from U.S. Customs and Border Protection.'' Rather, these transactions involved direct sales from Tung Mung, a company which is excluded from the order, to an unaffiliated purchaser in the United States, and thus these sales are properly excluded from the antidumping duty order on SSSSC from Taiwan.
This finding is consistent with our determination in the LTFV investigation that Tung Mung's direct sales to the United States were not subject to a middleman dumping investigation. See Notice of Final
Determination of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in Coils From Taiwan 64 FR 30592, 30621-30624 (June 8, 1999)
(where the Department stated ``although Tung Mung did have a small number of direct sales to TCI, we are not considering them to be subject to our middleman investigation.'') We find the facts in this segment of the proceeding with respect to Tung Mung's direct sales to
TCI to be identical to those present in the LTFV investigation. Thus, we find no basis to treat TCI as a middleman, solely by virtue of its affiliation with Ta Chen. Accordingly, we preliminarily determine it is appropriate to rescind the review for Ta Chen.
Affiliation
In the 2006-2007 administrative review, the most recently completed segment of this proceeding, we found Chia Far and Lucky Medsup Inc.
(Lucky Medsup), one of Chia Far's U.S. reseller customers, to be affiliated under section 771(33) of the Act, which states that, for purposes of affiliation, ``a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over that person.'' The Department's regulations further provide that ``{t{time} he Secretary will not find that control exists on the basis of these factors unless the relationship has the potential to impact decisions concerning the production, pricing, or cost of the subject merchandise or foreign like product.'' See 19 CFR 351.102(b)(3). This affiliation determination was based upon: (1) Chia Far's degree of involvement in sales between Lucky
Medsup and its customers; (2) Chia Far knew the identity of Lucky
Medsup's customers, and the customers were aware Chia Far was the supplier; (3) Lucky Medsup operated as a ``go-through'' that did not maintain any inventory or further manufacture products; and, (4) with the exception of one transaction involving non-subject merchandise, all of the products sold by Lucky Medsup during the POR were subject merchandise produced or exported by Chia Far. See 2006-2007 Preliminary
Results, 73 FR at 45395-45396, unchanged in 2006-2007 Final Results.
The affiliation determination in the 2006-2007 administrative review is consistent with the Department's findings in prior administrative reviews of the antidumping duty order on SSSSC from
Taiwan. See, e.g., Stainless Steel Sheet and Strip in Coils From
Taiwan: Final Results and Rescission in Part of Antidumping Duty
Administrative Review, 73 FR 6932 (Feb. 6, 2008), and accompanying
Issues and Decision Memorandum at Comment 3 (2005-2006 Final Results);
Stainless Steel Sheet and Strip From Taiwan; Final Results and Partial
Rescission of Antidumping Duty Administrative Review, 67 FR 6682 (Feb. 13, 2002), and accompanying Issues and Decision Memorandum at Comment 23 (upheld by the Court of International Trade (CIT) in Chia Far Indus.
Factory Co., Ltd. v. United States, et al., 343 F. Supp. 2d 1344, 1356- 57 (CIT 2004)). See also the July 29, 2009, Memorandum to the File from
Henry Almond, Analyst, entitled, ``Placing Information Regarding the
Principal-Agent Relationship between Lucky Medsup Inc. and Chia Far
Industrial Factory Co., Ltd. on the Record of the 2007-2008 Antidumping
Duty Administrative Review on Stainless Steel Sheet and Strip in Coils from Taiwan.''
In the present review, Lucky Medsup continues to act as a ``go- through'' without maintaining inventory, and Chia Far supplied all of the subject merchandise sold by Lucky Medsup during the POR. Further,
Chia Far has submitted no evidence on the record to demonstrate that
Chia Far is less involved in the transactions between Lucky Medsup and its customers as found in prior reviews. Therefore, we continue to find for purposes of these preliminary results that Chia Far is affiliated with Lucky Medsup because Chia Far is in a position to exercise restraint or direction over Lucky Medsup and has the potential to have an impact on Lucky Medsup's decisions regarding sales and pricing.
Identifying Home Market Sales
Section 773(a)(1)(B) of the Act defines NV as the price at which the foreign like product is first sold (or, in the absence of a sale, offered for sale) for consumption in the exporting country (home market), in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade
(LOT) as the export price (EP) or constructed export price (CEP). In implementing this provision, the Court of International Trade has found that sales should be reported as home market sales if the producer
``knew or should have known that the merchandise {it sold{time} was for home consumption based upon the particular facts and circumstances surrounding the sales.'' See Tung Mung Dev. Co v. United States, 25 CIT 752, 783 (2001) (quoting INA Walzlager Schaeffler KG v. United States, 957 F. Supp. 251 (CIT 1997)). Where a respondent has no knowledge as to the destination of subject merchandise, except that it is for export, the Department will classify such sales as export sales and exclude them from the home market sales database. See 2006-2007 Preliminary
Results, 73 FR at 45396, unchanged in 2006-2007 Final Results, and
Final Determinations of Sales at Less Than Fair Value: Certain Hot-
Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel
Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products, and Certain Cut-to-Length Carbon Steel Plate From Korea, 58 FR 37176, 37182-37183 (July 9, 1993).
In its November 14, 2008, questionnaire response, Chia Far stated that it shipped some of the SSSSC it
Page 39059
sold to home market customers during the POR to a container yard or it placed the SSSSC in an ocean shipping container at the home market customer's request. The Department has preliminarily determined that, based on the fact that these sales were sent to a container yard or placed in a container by Chia Far at the request of the home market customer, Chia Far should have known that the SSSSC in question was not for consumption in the home market. Therefore, consistent with this determination, the Department has preliminarily excluded these sales from Chia Far's home market sales database. This treatment is consistent with our practice in prior administrative reviews of this order. See, e.g., 2006-2007 Preliminary Results, 73 FR at 45396, unchanged in 2006-2007 Final Results.
Comparisons to Normal Value
In order to determine whether Chia Far sold SSSSC to the United
States at prices less than NV, the Department compared the EP and CEP of individual U.S. sales to the monthly weighted-average NV of sales of the foreign like product made in the ordinary course of trade. See section 777A(d)(2) of the Act; see also section 773(a)(1)(B)(i) of the
Act. Section 771(16) of the Act defines foreign like product as merchandise that is identical or similar to subject merchandise and produced by the same person and in the same country as the subject merchandise. Thus, we considered all products covered by the scope of the order that were produced by the same person and in the same country as the subject merchandise, and sold by Chia Far in the comparison market during the POR, to be foreign like products for the purpose of determining appropriate product comparisons to SSSSC sold in the United
States.
During the POR, Chia Far sold subject merchandise and foreign like product that it made from hot- and cold-rolled stainless steel coils
(products covered by the scope of the order) purchased from unaffiliated parties. Chia Far further processed the hot- and cold- rolled stainless steel coils by performing one or more of the following procedures: cold-rolling, bright annealing, surface finishing/shaping, and slitting. We did not consider Chia Far to be the producer of the merchandise under review if it performed only insignificant processing on the coils (e.g., annealing, slitting, surface finishing). See
Stainless Steel Plate in Coils from Belgium: Final Results of
Antidumping Duty Administrative Review, 69 FR 74495 (Dec. 14, 2004), and accompanying Issues and Decision Memorandum at Comment 4 (listing painting, slitting, finishing, pickling, oiling, and annealing as minor processing for flat-rolled products). Furthermore, we did not consider
Chia Far to be the producer of the cold-rolled products that it sold if it was not the first party to cold-roll the coils. The cold-rolling process changes the surface quality and mechanical properties of the product and produces useful combinations of hardness, strength, stiffness, and ductility. Stainless steel cold-rolled coils are distinguished from hot-rolled coils by their reduced thickness, tighter tolerances, better surface quality, and increased hardness which are achieved through cold-rolling. Chia Far's subsequent cold-rolling of the cold-rolled coils that it purchased may have modified these characteristics to suit the needs of particular customers; however, it did not impart these defining characteristics to the finished coils.
Thus, we considered the original party that cold-rolled the product to be its producer.
Product Comparisons
The Department compared U.S. sales to sales made in the comparison market within the contemporaneous window period, which extends from three months prior to the month in which the first U.S. sale was made until two months after the month in which the last U.S. sale was made.
See 19 CFR 351.414(e)(2). Where there were no sales of identical merchandise made in the comparison market in the ordinary course of trade, the Department compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making product comparisons, the Department selected identical and most similar foreign like products based on the physical characteristics reported by
Chia Far in the following order of importance: grade, hot- or cold- rolled, gauge, surface finish, metallic coating, non-metallic coating, width, temper, and edge.
Export Price and Constructed Export Price
The Department based the price of Chia Far's U.S. sales of subject merchandise on EP or CEP, as appropriate. Specifically, when Chia Far sold subject merchandise to unaffiliated purchasers in the United
States prior to importation and CEP was not otherwise warranted based on the facts of the record, we based the price of the sale on EP, in accordance with section 772(a) of the Act. When Chia Far sold subject merchandise to unaffiliated purchasers in the United States through its
U.S. affiliate, Lucky Medsup, we based the price of the sale on CEP, in accordance with section 772(b) of the Act.
We based EP on packed prices to the first unaffiliated purchaser in the United States. We made deductions from the starting price for foreign inland freight expenses, foreign brokerage and handling expenses, international freight expenses, marine insurance expenses, container handling charges, harbor maintenance fees, and certificate- of-origin fees, in accordance with section 772(c)(2)(A) of the Act.
We based CEP on packed prices sold to the first unaffiliated purchaser in the United States. We made deductions for foreign inland freight expenses, foreign brokerage and handling expenses, container handling expenses, foreign harbor construction expenses, international freight expenses, marine insurance expenses, U.S. duty expenses, U.S. brokerage and handling expenses, other U.S. transportation expenses, and harbor maintenance fees, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted from CEP those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (i.e., imputed credit expenses, bank fees, and warranties) and indirect selling expenses.
In addition, we deducted from the CEP starting price an amount for
CEP profit (i.e., profit allocated to expenses deducted under sections 772(d)(1) and (d)(2) of the Act), in accordance with sections 772(d)(3) and 772(f) of the Act. We computed profit by deducting from the total revenue realized on sales in both the U.S. and home markets all expenses associated with those sales. We then allocated profit to the expenses incurred with respect to U.S. economic activity, based on the ratio of total U.S. expenses to total expenses for both the U.S. and home markets.
Normal Value
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Home Market Viability
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act. Because the aggregate volume of
Chia Far's home market sales of the foreign like product is more than five percent of the aggregate volume of its U.S. sales of subject merchandise, we
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based NV on sales of the foreign like product in the respondent's home market.
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Level of Trade
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same LOT as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent). See 19 CFR 351.412(c)(2). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stages of marketing. Id. See also Notice of Final
Determination of Sales at Less Than Fair Value: Certain Cut-to-Length
Carbon Steel Plate From South Africa, 62 FR 61731, 61732 (Nov. 19, 1997) (Plate from South Africa). In order to determine whether the comparison market sales were at different stages in the marketing process than the U.S. sales, we reviewed the distribution system in each market (i.e., the chain of distribution), including selling functions, class of customer (customer category), and the level of selling expenses for each type of sale.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (i.e., NV based on either home market or third country prices),\7\ we consider the starting prices before any adjustments. For CEP sales, we consider only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act. See Micron Tech., Inc. v.
United States, 243 F.3d 1301, 1313-14 (Fed. Cir. 2001).
\7\ Where NV is based on constructed value (CV), we determine the NV LOT based on the LOT of the sales from which we derive selling expenses, general and administrative (G&A) expenses, and profit for CV, where possible.
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is at more advanced stage of distribution than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (i.e., no LOT adjustment was practicable), the Department shall grant a CEP offset, as provided in section 773(a)(7)(B) of the
Act. See Plate from South Africa, 62 FR at 61732-33.
In this administrative review, we obtained information from Chia
Far regarding the marketing stages involved in making the reported home market and U.S. sales, including a description of the selling activities performed by Chia Far for each channel of distribution. Chia
Far reported that it made EP sales in the U.S. market to distributors, as well as CEP sales to its affiliate, Lucky Medsup. Chia Far reported identical selling activities in selling to its unaffiliated U.S. customers as it did in selling to Lucky Medsup. We examined the selling activities performed for both channels and found that Chia Far performed the following types of selling activities equally in selling to its unaffiliated U.S. customers and to Lucky Medsup: (1) Price negotiation and communication with the customer (i.e., either its unaffiliated customers for EP sales, or Lucky Medsup for its CEP sales); (2) arranging for freight and the provision of customs clearance/brokerage services (where necessary); and, (3) provision of general technical advice (where necessary) and quality assurance- related activities, including warranty services. These selling activities can be generally grouped into four selling function categories for analysis: (1) Sales and marketing; (2) freight and delivery; and (3) inventory maintenance and warehousing; and, (4) warranty and technical support. Accordingly, we find that Chia Far performed sales and marketing, freight and delivery services, and warranty and technical support services for U.S. sales. Because the level of Chia Far's selling activities did not vary by distribution channel, we preliminarily determine that there is one LOT in the U.S. market.
With respect to the home market, Chia Far reported that it made sales to distributors and end users. We examined the selling activities performed for home market sales and found that Chia Far performed the following types of selling activities equally for sales to distributors and end users: (1) Price negotiation and communication with the customer; (2) arranging for freight (where necessary); (3) provision of general technical advice (where necessary) and quality assurance- related activities, including providing warranty services and rebates; and, (4) post-sale warehousing/processing on request. Accordingly, based on the selling functions analysis described above, we find that
Chia Far performed sales and marketing, freight and delivery services, warranty and technical support services, and inventory maintenance and warehousing for home market sales. Consequently, we preliminarily determine that there is one LOT in the home market for Chia Far.
Finally, we compared the U.S. LOT to the home market LOT and found that the selling functions performed for U.S. and home market customers do not differ significantly. Specifically, although Chia Far performed occasional warehousing and post-sale processing functions in the home market that it did not perform on sales to the United States, we do not find these differences to be material selling function distinctions sufficient to warrant a separate LOT for purposes of these preliminary results. Thus, we determine that the NV LOT is the same as the U.S.
LOT.
Regarding the CEP-offset provision, as described above, it is appropriate only if the NV LOT is at more advanced stage of distribution than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability. Because we find that no difference in LOTs exists, we do not find that a CEP offset is warranted.
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Cost of Production Analysis
In the 2005-2006 administrative review, the most recently completed segment of this proceeding as of the date of initiation of this review, the Department determined that Chia Far sold the foreign like product at prices below the cost of producing the product and excluded such sales from the calculation of NV. See 2005-2006 Final, 73 FR at 6935.
As a result, the Department initiated an investigation to determine whether Chia Far made home market sales during the POR at prices below their COPs. See section 773(b)(2)(A)(ii) of the Act. 1. Calculation of COP
In accordance with section 773(b)(3) of the Act, for each foreign like product sold by Chia Far during the POR, we calculated a weighted- average COP based on the sum of Chia Far's materials and fabrication costs, G&A expenses, and financial expenses. 2. Test of Comparison-Market Sales Prices
In order to determine whether sales were made at prices below the
COP on a product-specific basis, we compared Chia Far's weighted- average COP to the prices of its home market sales of foreign like product, as required under section 773(b) of the Act. In accordance with sections 773(b)(1)(A) and (B) of the Act, in determining whether to
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disregard home market sales made at prices less than the COP, we examined whether such sales were made: (1) In substantial quantities within an extended period of time; and, (2) at prices which permitted the recovery of all costs within a reasonable period of time. We compared the COP to home market sales prices, less any applicable movement charges and direct and indirect selling expenses. 3. Results of the COP Test
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of Chia Far's sales of a given product were made at prices less than the COP, we did not disregard any below-cost sales of that product because the below-cost sales were not made in ``substantial quantities.'' Where 20 percent or more of Chia Far's sales of a given product were made at prices less than the COP during the POR, we determined such sales to have been made in ``substantial quantities'' within an extended period of time (i.e., one year) pursuant to sections 773(b)(2)(B) and (C) of the Act. Based on our comparison of POR average costs to reported prices, we also determined, in accordance with section 773(b)(2)(D) of the Act, that these sales were not made at prices which would permit recovery of all costs within a reasonable period of time. As a result, we disregarded the below-cost sales of that product.
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Calculation of Normal Value Based on Comparison Market Prices
We based NV for Chia Far on prices to unaffiliated customers in the home market. We made deductions from the starting price, where appropriate, for billing adjustments and rebates. We also made deductions from the starting price for foreign inland freight expenses under section 773(a)(6)(B)(ii) of the Act. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c) for differences in credit expenses, bank fees, and warranties.
We also deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.
Finally, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
Currency Conversion
We made currency conversions into U.S. dollars in accordance with section 773A of the Act and 19 CFR 351.415, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal
Reserve Bank.
Preliminary Results of the Review
We preliminarily determine that the following weighted-average dumping margin exists for the respondent for the period July 1, 2007, through June 30, 2008:
Percent
Manufacturer/exporter
margin
Chia Far Industrial Factory Co., Ltd..........................
4.30
Disclosure and Public Hearing
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice. See 19 CFR 351.224(b). Pursuant to 19 CFR 351.309(c)(ii), interested parties may submit cases briefs not later than 30 days after the date of publication of this notice.
Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than 35 days after the date of publication of this notice. See 19 CFR 351.309(d)(1). Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities. See 19 CFR 351.309(c)(2).
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration,
Room 1870, within 30 days of the date of publication of this notice.
Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and, (3) a list of issues to be discussed. Id. Issues raised in the hearing will be limited to those raised in the respective case briefs. The Department will issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
Assessment Rates
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of the final results of this review.
For Chia Far, we will calculate importer-specific ad valorem duty assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of those sales.
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above de minimis (i.e., less than 0.50 percent). Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is de minimis. See 19 CFR 351.106(c)(1). The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
The Department clarified its ``automatic assessment'' regulation on
May 6, 2003. See Antidumping and Countervailing Duty Proceedings:
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment
Policy Notice). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary (e.g., a reseller, trading company, or exporter) was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all others rate if there is no rate for the intermediary involved in the transaction. See Assessment Policy Notice for a full discussion of this clarification.
Cash Deposit Requirements
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Chia Far will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case no cash deposit will be required; (2) for previously reviewed or investigated companies not participating in this review, the cash deposit rate will continue to be the company-specific rate
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published for the most recent period; (3) if the exporter is not a firm covered in this review, or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and, (4) the cash deposit rate for all other manufacturers or exporters will continue to be 12.61 percent, the all others rate made effective by the
LTFV investigation. See SSSSC Order, 64 FR at 40557. These deposit requirements, when imposed, shall remain in effect until further notice.
Notification to Importers
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results of administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
Dated: July 30, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
FR Doc. E9-18722 Filed 8-4-09; 8:45 am
BILLING CODE 3510-DS-P
