E5-5539. Certain Hot-Rolled Carbon Steel Flat Products From Brazil: Notice of Intent To Rescind Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On April 22, 2005, the Department of Commerce published a notice of initiation of an administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from Brazil for the period March 1, 2004, through February 28, 2005. The Department intends to rescind this review after determining that one of the parties subject to this review did not have entries during the period of review (POR) upon which to assess antidumping duties, and that the other party had no entries in addition to those that are already being examined in an ongoing new shipper review.

Effective Date:

October 7, 2005.

FOR FURTHER INFORMATION CONTACT:

Helen Kramer or Kristin Najdi at [phone] or [phone], respectively; AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

On March 1, 2005, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from Brazil for the period March 1, 2004, through February 28, 2005. See Notice of Opportunity to Request Administrative Review of Antidumping Duty Order, Finding or Suspended Investigation, 70 FR 9918 (March 1, 2005). On March 31, 2005, United States Steel Corporation (USSC) and Nucor Corporation (Nucor), domestic producers of the subject merchandise, made timely requests that the Department conduct an administrative review of Companhia Siderurgica Nacional (CSN) and Companhia Siderurgica de Tubarao (CST). On April 22, 2005, in accordance with section 751(a) of the Tariff Act of 1930 as amended (the Act), the Department published in the Federal Register a notice of initiation of this antidumping duty administrative review. See Notice of Initiation of Antidumping Duty and Countervailing Duty Administrative Reviews, 70 FR 20862 (April 22, 2005). On April 28, 2005, the Department issued its antidumping duty questionnaire to CSN and CST. Both CSN and CST requested rescission of this administrative review.

Scope of the Order

For purposes of this order, the products covered are certain hot-rolled flat-rolled carbon-quality steel products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers) regardless of thickness, and in straight lengths, of a thickness less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm, but not exceeding 1250 mm and of a thickness of not less than 4 mm, not in coils and without patterns in relief) of a thickness not less than 4.0 mm is not included within the scope of this order.

Specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, and the substrate for motor lamination steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.

Steel products to be included in the scope of this order, regardless of HTSUS definitions, are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, or 1.50 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.012 percent of boron, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.41 percent of titanium, or 0.15 percent of vanadium, or 0.15 percent of zirconium.

All products that meet the physical and chemical description provided above are within the scope of this order unless otherwise excluded. The following products, by way of example, are outside and/or specifically excluded from the scope of this order:

• Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including e.g., ASTM specifications A543, A387, A514, A517, and A506).
• SAE/AISI grades of series 2300 and higher.
• Ball bearing steels, as defined in the HTSUS.
• Tool steels, as defined in the HTSUS.
• Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 1.50 percent.
• ASTM specifications A710 and A736.
• USS Abrasion-resistant steels (USS AR 400, USS AR 500).
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:

[In percent]

C	Mn (max)	P (max)	S (max)	Si	Cr	Cu	Ni (max)
0.10-0.14	0.90	0.025	0.005	0.30-0.50	0.30-0.50	0.20-0.40	0.20
Width = 44.80 inches maximum; Thickness = 0.063-0.198 inches; Yield Strength = 50,000 ksi minimum; Tensile Strength = 70,000-88,000 psi.

• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:

[In percent]

C	Mn	P (max)	S (max)	Si	Cr	Cu (max)	Ni (max)	Mo (max)
0.10-0.16	0.70-0.90	0.025	0.006	0.30-0.50	0.30-0.50	0.25	0.20	0.21
Width = 44.80 inches maximum; Thickness = 0.350 inches maximum; Yield Strength = 80,000 ksi minimum; Tensile Strength = 105,000 psi Aim.

• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:

[In percent]

C	Mn	P	S	Si	Cr	Cu	Ni	V (wt) (max)	Cb (max)
0.10-0.14	1.30-1.80	0.025	0.005	0.30-0.50	0.50-0.70	0.20-0.40	0.20	0.10	0.08
Width = 44.80 inches maximum; Thickness = 0.350 inches maximum; Yield Strength = 80,000 ksi minimum; Tensile Strength = 105,000 psi Aim.

• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications.

[In percent]

C (max)	Mn (max)	P (max)	S (max)	Si (max)	Cr (max)	Cu (max)	Ni (max)	Nb (min)	Ca	A1
0.15	1.40	0.025	0.010	0.50	1.00	0.50	0.20	0.005	Treated	0.01-0.70
Width = 39.37 inches; Thickness = 0.181 inches maximum; Yield Strength = 70,000 psi minimum for thickness ≤ 0.148 inches and 65,000 psi minimum for “thicknesses” > 0.148 inches; account for 64 FR 38650; Tensile Strength = 80,000 psi minimum.

• Hot-rolled dual phase steel, phase-hardened, primarily with a ferritic-martensitic microstructure, contains 0.9 percent up to and including 1.5 percent silicon by weight, further characterized by either (i) tensile strength between 540 N/mm² and 640 N/mm² and an elongation percentage ≥ 26 percent for thicknesses of 2 mm and above, or (ii) a tensile strength between 590 N/mm² and 690 N/mm² and an elongation percentage ≥ 25 percent for thicknesses of 2 mm and above.
• Hot-rolled bearing quality steel, SAE grade 1050, in coils, with an inclusion rating of 1.0 maximum per ASTM E 45, Method A, with excellent surface quality and chemistry restrictions as follows: 0.012 percent maximum phosphorus, 0.015 percent maximum sulfur, and 0.20 percent maximum residuals including 0.15 percent maximum chromium.
• Grade ASTM A570-50 hot-rolled steel sheet in coils or cut lengths, width of 74 inches (nominal, within ASTM tolerances), thickness of 11 gauge (0.119 inch nominal), mill edge and skin passed, with a minimum copper content of 0.20%.

The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, 7211.19.75.90, 7212.40.10.00, 7212.40.50.00, 7212.50.00.00. Certain hot-rolled flat-rolled carbon-quality steel covered by this order, including: vacuum degassed, fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Although the HTSUS subheadings are provided for convenience and Customs purposes, the written description of the merchandise under this order is dispositive.

Intent To Rescind Administrative Review

On May 3, 2005, CSN submitted a letter to the Department indicating that it did not have any shipments or entries of subject merchandise during the POR. On May 10, 2005, CST submitted a letter to the Department certifying that the only shipments or entries of subject merchandise it had during the POR are currently being reviewed by the Department as part of a new shipper review of CST for the period March 1, 2004, through August 31, 2004. The Department conducted an internal customs data query to confirm that CSN had no entries of subject merchandise into the United States during the POR, and that CST had no entries of subject merchandise other than those already being reviewed as part of the current new shipper review. The customs data showed no entries of subject merchandise by CSN during the POR, and no additional entries by CST that should be reviewed.

On May 12, 2005, the Department asked the interested domestic parties to submit comments by May 19, 2005, on the requests for rescission. On May 19, 2005, Nucor filed comments objecting to the rescission of the administrative review for CSN, arguing that CSN had sales during this POR that are currently being examined as part of the first administrative review period. Nucor argued that those sales should be reviewed in the current period and that the Department should not limit its decision-making authority by rescinding the current review. Nucor also argued that CST did not certify that it had no sales during the current POR, and that although CST's sales are being reviewed under another proceeding, since CST was the only party that requested that review, it could withdraw its new shipper request subsequent to a rescission of the 2004-2005 proceeding. Should this occur, Nucor claimed it would be prejudiced by a lack of review of sales in either proceeding. Nucor also stated that it is developing evidence that CST was affiliated with other producers by ownership and control mechanisms through Companhia Vale do Rio Doce (“CVRD”) at the time of the investigation, and that Nucor will seek to have the new shipper review rescinded on this basis. Nucor concluded that it would be inappropriate and premature to rescind the 2004-2005 review. Nucor has not thus far submitted any evidence of this affiliation claim to the Department.

On May 26, 2005, Nucor filed additional comments arguing that the Department should rescind the 2003-2004 review of CSN's sales and instead review them under the 2004-2005 proceeding. On June 3, 2005, CSN responded to Nucor's letter, noting that Nucor incorrectly identified the issue as to which review period the Department should assign CSN's U.S. sale, and pointing out that the purpose of administrative reviews is to determine the dumping duties to be assessed on entries of subject merchandise made during the POR, citing section 751(a)(2)(C) and the Department's consistent practice of rescinding all administrative reviews where no entries were made during the review period. CSN cited Stainless Steel Sheet and Strip in Coils from Taiwan: Notice of Final Results of Administrative Review, 67 FR 6682 (Feb. 13, 2002), and accompanying Issues and Decision Memorandum at Comment 30, in which the Department stated that its interpretation of the statute and regulations, as affirmed by the Court of Appeals for the Federal Circuit, does not support conducting an administrative review when the evidence on the record indicates that respondents had no entries of subject merchandise during the POR. CSN also cited Stainless Steel Bar from Italy: Preliminary Results and Partial Rescission of Administrative Review, 70 FR 17656 (April 7, 2005) (“Stainless Steel Bar from Italy: Preliminary Results”); Cut-to-Length Carbon Steel Plate from Romania: Final Results and Partial Rescission of Administrative Review, 70 FR 12651 (March 15, 2005); Petroleum Wax Candles from the People's Republic of China: Rescission of Administrative Review, 69 FR 46510 (August 3, 2004); Hot-Rolled Carbon Steel Flat Products from India: Rescission of Administrative Review, 69 FR 42967 (July 19, 2004); Certain Stainless Steel Butt-Weld Pipe Fittings from Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Notice of Intent to Rescind in Part, 69 FR 40859 (July 7, 2004); Corrosion-Resistant Carbon Steel Flat Products from Korea: Partial Rescission of Antidumping Duty Administrative Review, 69 FR 34646 (June 22, 2004); and Allegheny Ludlum Corp. v. United States, 346 F.3d 1368, 1374 (CIT 2003), in which the court upheld the Department's policy of rescinding administrative reviews where there are no entries during the POR. CSN pointed out that Nucor failed to identify even one case in which the Department conducted an administrative review in the absence of any POR entries.

Pursuant to 19 CFR 351.213(d)(3), the Department will rescind an administrative review if we conclude that during the POR there were no entries, exports, or sales of the subject merchandise. The Department's practice, supported by substantial precedent, requires that there be entries during the POR upon which to assess antidumping duties. See, e.g. Stainless Steel Bar from Italy: Preliminary Results. CSN certified that it had no entries of subject merchandise during the 2004-2005 POR, which the Department corroborated on the basis of official data from the U.S. Bureau of Customs and Border Protection. Further, the Department made a preliminary determination in the 2003-2004 administrative review to review CSN's U.S. sale of further manufactured merchandise made after the POR that is linked to an entry during that POR. See Certain Hot-Rolled Carbon Steel Flat Products from Brazil; Preliminary Results of Antidumping Administrative Review, 70 FR 17406 (April 6, 2005). The final results of that review are now being published with a signature date of October 3, 2005. CSN had no additional entries to review in the current POR. Finally, as CST had no entries in addition to those already being reviewed as part of a new shipper review, we have preliminarily determined to rescind the 2004-2005 administrative review.

Public Comment

An interested party may request a hearing within 20 days of publication of this notice. Any hearing, if requested, will be held 34 days after the date of publication of this notice, or the first working day thereafter. Interested parties may submit case briefs not later than 20 days after the date of publication of this notice. Rebuttal briefs, which must be limited to issues raised in such briefs, must be filed not later than 7 days from the case brief after the date of publication of this notice. Parties who submit arguments are requested to submit with the argument (1) A statement of the issue, (2) a brief summary of the argument, and (3) a table of authorities. Further, parties submitting written comments should provide the Department with an additional copy of the public version of any such comments on diskette. We will issue our final decision concerning the conduct of the review no later than 120 days from the date of publication of this notice.

This notice is published in accordance with 19 CFR 351.213(d)(4).

Dated: October 3, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.