01-1107. Notice of Preliminary Determinations of Sales at Less Than Fair Value: Stainless Steel Angle From Japan, Korea, and Spain

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of preliminary determinations.

EFFECTIVE DATE:

January 12, 2001.

FOR FURTHER INFORMATION CONTACT:

Jarrod Goldfeder (Japan) at [phone], Brian Smith (Korea) at [phone], Davina Hashmi (Spain) at [phone], Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230.

Preliminary Determinations

We preliminarily determine that stainless steel angle (“SSA”) from Japan, Korea, and Spain are being, or are likely to be, sold in the United States at less-than-fair-value (“LTFV”) prices, as provided in section 733 of the Tariff Act of 1930, as amended (“the Act”). The estimated margins of sales at LTFV are shown in the “Suspension of Liquidation” section of this notice.

The Applicable Statute

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 Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department's) regulations refer to 19 CFR Part 351 (2000).

Case History

Since the initiation of these investigations (Notice of Initiation of Antidumping Investigations: Stainless Steel Angle from Japan, Republic of Korea, and Spain (65 FR 55504, (September 14, 2000)) (“Initiation Notice”), the following events have occurred:

On September 19, 2000, the Department sent letters to the petitioners^[1] and all parties named in the petition requesting comments on the product-matching criteria and matching hierarchy in the three individual cases. These parties included: Daido Steel Co., Ltd. (“Daido”), Aichi Steel Corporation (“Aichi”), and Sumitomo Metal Industries, Ltd., (“Sumitomo”), possible exporters/producers of SSA from Japan; Bae Myung Metal Co., Ltd. (“Bae Myung”), a possible exporter/producer of SSA from Korea; and Roldan, S.A. (“Roldan”), a possible exporter/producer of SSA from Spain. See “Respondent Selection” section of this notice for further discussion of how the Department determined the respondents in these investigations. On September 21, 2000, the petitioners submitted comments on the physical characteristics for product-matching purposes in all three cases.

On September 25, 2000, Bae Myung submitted a letter of appearance and a request that certain SSA be excluded from the scope of the investigation concerning Korea. On October 4, 2000, the petitioners filed comments on Bae Myung's scope-exclusion request. See “Scope Comments” section of this notice for further discussion. On September 28, 2000, the United States International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of SSA from Japan, Korea, and Spain are materially injuring (or threatening with material injury) the United States industry. See Stainless Steel Angle from Japan, Korea and Spain, 65 FR 60451 (October 11, 2000), and USITC publication 3356 (October 2000) entitled Stainless Steel Angle from Japan, Korea and Spain: Investigation Nos. 731-TA-888-890 (Preliminary).

As a result of our research to determine the proper recipients of the antidumping questionnaires in the three cases, on October 12, 2000, we issued antidumping duty questionnaires^[2] to two Korean companies (Bae Myung and SK Global Co., Ltd. (“SK Global”)) and to the Spanish company (Roldan). On October 13, 2000, we issued questionnaires to three Japanese companies (Aichi, Daido, and Sumitomo). See “Respondent Selection” section of this notice for further discussion. On October 17, 2000, Roldan submitted a letter of appearance.

On November 20, 2000, Bae Myung's counsel indicated that Bae Myung would not be submitting a response to the antidumping duty questionnaire. At that time, the Department informed Bae Myung's counsel that Bae Myung's failure to submit a response would result in the application of facts available. See November 20, 2000, memorandum to the case file concerning SSA from Korea. On November 21, 2000, Roldan's counsel indicated that Roldan was not submitting a response to the antidumping duty questionnaire. At that time, the Department informed Roldan's counsel that Roldan's failure to submit a response would result in the application of facts available. See November 21, 2000, memorandum to the case file concerning SSA from Spain. On November 27, 2000, the Department sent letters to SK Global (i.e., the other Korean respondent) and the three Japanese respondents informing them that the Department did not receive their responses to the antidumping duty questionnaire and that, if they did not contact the Department by December 4, 2000, the Department would resort to facts available in making its preliminary determinations. None of these respondents contacted the Department by December 4, 2000.

Scope of Investigations

For purposes of these investigations, the term “stainless steel angle” includes hot-rolled, whether or not annealed or descaled, stainless steel products of equal leg length angled at 90 degrees, that are not otherwise advanced. The stainless steel angle subject to these investigations is currently classifiable under subheadings 7222.40.30.20 and 7222.40.30.60 of the Harmonized Tariff Schedules of the United States (“HTSUS”). Specifically excluded from the scope of these investigations is stainless steel angle of unequal leg length. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of these investigations is dispositive.

Scope Comments

On September 25, 2000, Bae Myung, a Korean respondent, requested that the Department exclude from the scope of the proceeding on SSA from Korea certain SSA products that Slater (i.e., one of the petitioners) does not produce. Specifically, Bae Myung stated that Slater does not make SSA with leg lengths under one inch or over three inches and that SSA of different leg lengths cannot be used in the same application and thus are not substitutable. We did not receive scope comments from SK Global or from the respondents in the cases of SSA from Japan or Spain.

On October 4, 2000, we received comments from the petitioners requesting that we reject Bae Myung's request to exclude products that Slater did not produce. The petitioners based their request on established Department practice, which is not to alter the petitioner's scope definition except to clarify ambiguities in the language or address administrability problems, citing the Notice of Final Determination of Sales at Less-Than-Fair-Value: Melamine Institutional Dinnerware Products from the People's Republic of China, 62 FR 1708 (Jan. 13, 1997) and Final Affirmative Countervailing Duty Determination: Stainless Steel Sheet and Strip in Coils from Italy, 64 FR 30624, 30635 (June 8, 1999). The petitioners state that, in this case, they have identified the products in the petition clearly. Moreover and most importantly, the petitioners state, the statute does not require that the domestic industry must currently produce every kind of product included within the scope of a petition. Rather, the petitioners maintain, products are often included in the scope of an investigation because they are similar to and competitive with the domestic like product.

In analyzing Bae Myung's scope-exclusion request, we examined the ITC's preliminary determination report (i.e., ITC publication No. 3356, dated October 2000) to determine whether the ITC found that the specific products identified by Bae Myung in its exclusion request constitute a domestic like product distinct from the rest of the products covered by the scope of these investigations. We found no indication in the ITC's preliminary determination report that leg lengths under one inch or over three inches should be considered as separate domestic like products. In addition, we examined whether this scope-exclusion request had been an issue in an earlier proceeding involving SSA from Japan (see Final Determination of Sales at Less Than Fair Value: Stainless Steel Angle from Japan, 60 FR 16608 (March 31, 1995)). In this past case, as well as in the current cases, we found no indication that any sizes of SSA with equal leg lengths should constitute distinct domestic like products or foreign like products for comparison purposes. Therefore, after reviewing the comments submitted by Bae Myung and the petitioners, the ITC report, and the earlier investigation on SSA case from Japan, we have determined that the scope of the investigation of SSA from Korea, as well as that of the investigations of SSA from Japan and Spain, should also include SSA with leg lengths under one inch and over three inches.

Period of Investigation

The period of these investigations (“POI”) is August 1, 1999, through July 31, 2000.

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. However, section 777A(c)(2) of the Act gives the Department discretion, when faced with a large number of exporters/producers, to limit its examination to a reasonable number of such companies if it is not practicable to examine all companies. Where it is not practicable to examine all known exporters/producers of subject merchandise, this provision permits the Department to investigate either (1) a sample of exporters, producers, or types of products that is statistically valid based on the information available at the time of selection, or (2) exporters and producers accounting for the largest volume of the subject merchandise that can be reasonably examined.

In their petition, the petitioners identified Aichi, Daido, and Sumitomo as possible exporters/producers of SSA from Japan, Bae Myung as a possible exporter/producer of SSA from Korea, and Roldan as a possible exporter/producer of SSA from Spain. On September 25, 2000, we sent a cable to our U.S. embassy in each of the three countries to inquire whether there were any other companies besides those listed in the petition that either exported or produced SSA during the POI in that particular country. The embassies did not indicate that there were any other exporters or producers of the subject merchandise.

To identify further the universe of potential respondents from the three countries to which we should send an antidumping duty questionnaire for purposes of these LTFV investigations, we performed the following steps in each case. For the case concerning Japan, we conducted a U.S. Customs Service (“Customs Service”) query and obtained information on the quantity and value of SSA imported from Japan into the United States on an annual basis for 1997, 1998, 1999, and January to June 2000. An analysis of the Customs Service data confirmed two of the three manufacturers of SSA in Japan named in the petition. The query covered SSA within the HTS numbers 7222.40.30.20 and 7222.40.30.60, which may include non-subject SSA (e.g., unequal lengths). Additionally, we conducted an internet search which yielded no additional information. Based on these steps, we determined that Aichi, Daido, and Sumitomo were the only appropriate Japanese recipients of our questionnaire for purposes of conducting this investigation. See “Memorandum to the File regarding Questionnaire Recipients” dated December 27, 2000, for further discussion.

For the case concerning Korea, we conducted a Customs Service query and obtained information on the quantity and value of SSA imported from Korea into the United States on an annual basis for 1997, 1998, 1999, and January to June 2000. An analysis of the Customs Service data indicated that there was only one manufacturer/exporter of SSA in Korea. The query covered SSA within the HTS numbers 7222.40.30.20 and 7222.40.30.60, which may include non-subject SSA (e.g., unequal lengths). Finally, we conducted an internet search which revealed that another Korean company, SK Global, may have also exported or produced SSA that entered the U.S. market during the POI. Based on the above-mentioned steps, we determined that Bae Myung and SK Global were the only appropriate Korean recipients of our questionnaire for purposes of conducting this investigation. See “Memorandum to the File regarding Questionnaire Recipients” dated December 11, 2000, for further discussion.

For the case concerning Spain, we conducted a Customs Service query and obtained information on the quantity and value of SSA imported from Spain into the United States on an annual basis for 1997, 1998, 1999, and January to June 2000. An analysis of the Customs Service data indicated that there were possibly ten manufacturers/exporters of SSA in Spain. Based on this data, we found that Roldan accounted for almost 100 percent of the total quantity of subject merchandise entered into the United States in 1999 and 2000. The other manufacturers accounted for an insignificant amount of the total quantity entered into the United States. The query covered SSA within the HTS numbers 7222.40.30.20 and 7222.40.30.60, which may include non-subject SSA (e.g., unequal lengths). We also consulted the 1999 steel manufacturer's reference book, Iron and Steel Works of the World, which indicated that Roldan was the only SSA manufacturer in Spain. Our internet search indicated that Roldan was the only manufacturer/exporter of SSA in Spain and, thus, the only appropriate Spanish recipient of our questionnaire for purposes of conducting this investigation. See “Respondent Selection Memorandum to the File” dated January 3, 2001, for further discussion.

After confirming the proper recipients of the antidumping questionnaires in the three cases, we determined that, given our resources, we would be able to investigate all companies identified in the petition and the additional Korean company (SK Global) identified in our internet research.

Facts Available

As stated above, none of the respondents from any of the three SSA cases responded to the Department's antidumping duty questionnaire. Section 776(a)(2) of the Act provides that, “if an interested party or any other person—(A) withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i), the administering authority...shall, subject to section 782(d), use the facts otherwise available in reaching the applicable determination under this title.” Pursuant to section 776(a) of the Act, we have determined that the use of facts available is appropriate in determining the preliminary dumping margins for Aichi, Daido, and Sumitomo (i.e., the three respondents in the Japan case), Bae Myung and SK Global (i.e., the two respondents in the Korea case), and Roldan (i.e., the sole respondent in the Spain case) because all of these companies failed to respond to our questionnaire.

Section 776(b) of the Act provides that the Department may use adverse inferences in selecting facts otherwise available if a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. See also Statement of Administrative Action (“SAA”) accompanying the URAA, H.R. Rep. No. 103-316 at 870 (1994). Failure by Aichi, Daido, Sumitomo, Bae Myung, SK Global, and Roldan to respond to the Departments's antidumping duty questionnaire constitutes a failure to act to the best of their ability to comply with a request for information, within the meaning of section 776(b) of the Act. Therefore, the Department has determined that the use of an adverse inference in selecting the facts available to determine the preliminary margins for these respondents is warranted. Because we were unable to calculate margins for these respondents from Japan, Korea, and Spain, consistent with our practice, we have assigned the respondents in these cases the highest margins alleged in the petition or as we recalculated (see Notice of Preliminary Determinations of Sales at Less Than Fair Value: Certain Large Diameter Carbon and Alloy Seamless Standard, Line and Pressure Pipe from Japan and Certain Small Diameter Carbon and Alloy Seamless Standard, Line and Pressure Pipe from Japan and the Republic of South Africa, 64 FR 69718, 69722 (December 14, 1999), and Notice of Preliminary Determination of Sales at Less Than Fair Value: Stainless Steel Wire Rod from Germany, 63 FR 10847, 10848 (March 5, 1998)). Based on amendments to the petition and the Department's recalculations, where applicable, the highest margin for SSA from Japan is 114.51 percent, the highest margin in for SSA from Korea is 99.56 percent, and the highest margin for SSA from Spain is 61.45 percent. See Initiation Notice, 65 FR at 55505-55507.

Section 776(b) of the Act states that an adverse inference may include reliance on information derived from the petition. See also SAA at 829-831. Section 776(c) of the Act provides that, when the Department relies on secondary information (such as 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 U.S. Customs Service data, and information obtained from interested parties during the particular investigation (see SAA at 870).

To corroborate the margin calculations in the petition, we examined the rates contained in the petition. The U.S. prices in the petition were based on quotes to U.S. customers, most of which were obtained through market research. Additionally, the normal values were based on actual price quotations obtained through market research. See Notice of Initiation, 65 FR at 55506, and “Country-Specific Import Administration AD Investigation Initiation Checklist” dated September 7, 2000, for a discussion of the margin calculations in the petition applicable to each LTFV proceeding.

In accordance with section 776(c) of the Act, to the extent practicable, we examined the key elements of the calculations of export price and normal value upon which the petitioners based their margins for the petition. This information includes evidence such as U.S. Customs Service statistics or market studies we consider to be reliable because they are based on actual, independent trade data and analysis. We were able to corroborate the U.S. prices in the petition by comparing these prices to publicly available information based on IM-145 import statistics. We consider export prices which are based on U.S. import statistics to be corroborated (see Certain Cut-to-Length Carbon Steel Plate from Mexico: Final Results of Antidumping Duty Administrative Review, 64 FR 76, 84 (January 4, 1999) (Comment 13) (“CTL Plate from Mexico”)). With regard to the normal values in the petition, the Department did not receive any useful information from the respondents or other interested parties and is aware of no other independent sources of information that would enable it to corroborate the margin calculations in the petition further. See “Country-Specific Memoranda to the File Regarding the Facts Available Rate and Corroboration of Secondary Information,” for each SSA case dated January 3, 2001, for further discussion.

The implementing regulation for section 776 of the Act, codified at 19 CFR 351.308(d), states, “(t)he fact that corroboration may not be practicable in a given circumstance will not prevent the Secretary from applying an adverse inference as appropriate and using the secondary information in question.” Additionally, the SAA at 870 states specifically that, where “corroboration may not be practicable in a given circumstance,” the Department may nevertheless apply an adverse inference. The SAA at 869 emphasizes that the Department need not prove that the facts available are the best alternative information. Therefore, based on our efforts, described above, to corroborate information contained in the petition for each LTFV proceeding and in accordance with 776(c) of the Act, which discusses facts available and corroboration, we consider the margins in the petition to be corroborated to the extent practicable for purposes of these preliminary determinations (see CTL Plate from Mexico, 64 FR at 84).

All Others Rate

Section 733(d)(1)(A)(ii) of the Act, in accordance with 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. See also SAA at 873. Our recent practice under these circumstances has been to assign, as the “all others” rate, the simple average of the margins in the petition. We have done so in these cases. 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), and 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).

Suspension of Liquidation

In accordance with section 733(d) of the Act, we are directing the Customs Service to suspend liquidation of all entries of SSA from Japan, Korea, and Spain 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 also instruct the Customs Service to require a cash deposit or the posting of a bond equal to the dumping margins, as indicated in the chart below. These instructions will remain in effect until further notice. The dumping margins for each LTFV proceeding are as follows: **FOOTNOTES** [1]: The petitioners are Slater Steels Corporation, Speciality Alloys Division (“Slater”), and the United Steel Workers of America, AFL-CIO/CLC (collectively, “the petitioners”). [2]: Section A of the questionnaire requested general information concerning the company's corporate structure and business practices, the merchandise under investigation that it sells, and the sales of that merchandise in all markets. Sections B and C of the questionnaire requested home market sales listings and U.S. sales listings. Section D of the questionnaire requested information regarding the cost of production (“COP”) of the foreign like product and the constructed value (“CV”) of the merchandise under investigation. Section E of the questionnaire requested information regarding the cost of further manufacture or assembly performed in the United States.

Exporter/Manufacturer (Japan)	Weighted-Average Margin Percentage
Japan
Daido	114.51
Aichi	114.51
Sumitomo	114.51
All Others	70.48
Korea
Bae Myung	99.56
SK Global	99.56
All Others	40.21
Spain
Roldan	61.45
All Others	24.32

ITC Notification

In accordance with section 733(f) of the Act, we have notified the ITC of our preliminary determinations. If our final determinations are affirmative, the ITC will determine before the later of 120 days after the date of these preliminary determinations or 45 days after our final determinations whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

Public Comment

Case briefs or other written comments in at least ten copies must be submitted to the Assistant Secretary for Import Administration no later than 50 days after the date of publication of this notice and rebuttal briefs no later than 55 days after the date of publication of this notice. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries 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 by any interested party, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. If a request for a hearing is made, the hearing will be tentatively held two days after the deadline for submission of the rebuttal briefs, 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. If such a hearing is requested, the Department may schedule a single hearing to encompass all three LTFV proceedings.

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 these investigations proceed normally, we will make our final determinations by no later than 75 days after the date of these preliminary determinations.

These determinations are published pursuant to sections 733(f) and 777(i)(1) of the Act.

Troy H. Cribb,

Assistant Secretary for Import Administration.

Footnotes

1.  The petitioners are Slater Steels Corporation, Speciality Alloys Division (“Slater”), and the United Steel Workers of America, AFL-CIO/CLC (collectively, “the petitioners”).

2.  Section A of the questionnaire requested general information concerning the company's corporate structure and business practices, the merchandise under investigation that it sells, and the sales of that merchandise in all markets. Sections B and C of the questionnaire requested home market sales listings and U.S. sales listings. Section D of the questionnaire requested information regarding the cost of production (“COP”) of the foreign like product and the constructed value (“CV”) of the merchandise under investigation. Section E of the questionnaire requested information regarding the cost of further manufacture or assembly performed in the United States.