[Federal Register Volume 64, Number 238 (Monday, December 13, 1999)]
[Notices]
[Pages 69488-69491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32228]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-583-008]
Certain Circular Welded Carbon Steel Pipes and Tubes From Taiwan:
Final Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results of antidumping duty administrative
review.
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SUMMARY: On June 7, 1999, the Department of Commerce (the Department)
published the preliminary results of review of the antidumping duty
order on certain circular welded carbon steel pipes and tubes from
Taiwan (64 FR 30306). The review covers four manufacturer/exporters of
the subject merchandise to the United States and the period May 1, 1997
through April 30, 1998. The manufacturers covered are Yieh Hsing
Enterprise Co. Ltd. (Yieh Hsing), Yieh Loong Co., Ltd. (Yieh Loong),
Kao Hsing Chang Iron & Steel Corporation (KHC) and Yun Din Steel Co.,
Ltd. (Yun Din).
EFFECTIVE DATE: December 13, 1999.
FOR FURTHER INFORMATION CONTACT: Thomas Killiam or Michael J. Heaney,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230; telephone (202) 482-3019 or 482-4475,
respectively.
Applicable Statute. Unless otherwise indicated, all citations to
the Tariff Act of 1930, as amended (the Act) 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's regulations are to the regulations, codified at 19 CFR
Part 351 (1998).
SUPPLEMENTARY INFORMATION:
Background
On June 7, 1999 the Department published the preliminary results of
the administrative review, and rescinded the review with respect to Far
East Machinery Co., Ltd., Sheng Yu Steel Co., Ltd., and Tai Feng
Industries. Certain Circular Welded Carbon Steel Pipes and Tubes From
Taiwan: Preliminary Results of Antidumping Duty Administrative Review
and Partial Recission of Review 64 FR 30306 (``Preliminary Results'').
We received comments from petitioners and respondents Yieh Hsing and
KHC. We received rebuttal comments from the petitioners and KHC. The
Department has now completed this review in accordance with section 751
of the Act.
Scope of the Review
Imports covered by this review are shipments of certain circular
welded carbon steel pipes and tubes. The Department defines such
merchandise as welded carbon steel pipes and tubes of circular cross
section, with walls not thinner than 0.065 inch and 0.375 inch or more
but not over 4\1/2\ inches in
[[Page 69489]]
outside diameter. These products are commonly referred to in the
industry as ``standard pipe'' and are produced to various American
Society for Testing Materials specifications, most notably A-53, A-120,
or A-135. Standard pipe is currently classified under Harmonized Tariff
Schedule of the United States (HTSUS) item numbers 7306.30.5025,
7306.30.5032, 7306.30.5040, and 7306.30.5055. Although the HTSUS
subheading is provided for convenience and customs purposes, the
written description of the merchandise under investigation is
dispositive.
Non-Responding Companies
Yun Din and Yieh Loong did not respond to our requests for
information. For the reasons discussed in the notice of preliminary
results, we have assigned these companies, as facts available, the
highest rate in any review of this order, 14.08%. See Preliminary
Results at 64 FR 30307.
Methodology
Except for the corrections of clerical errors discussed below we
did not change our method of analysis from the preliminary results. See
id. at 30307-30309. Thus, we applied the same methods with regard to
price and cost, and observed the requirements of section
773(a)(1)(B)(i) of the Act concerning level-of-trade analysis.
Comments: KHC
Comment 1: Petitioners argue with respect to KHC that the
Department should reject the cost-of-production (COP) offset claimed by
KHC unless ``heads and tails'' (pipe-end trimmings) were included in
the cost of raw input submitted by KHC. KHC counters that these items
were in fact included in its submitted costs.
Department's Position: There is no record evidence to indicate that
KHC omitted ``head and tails'' from its cost calculations. Accordingly,
we have allowed KHC's claimed offset.
Comment 2: KHC argues that the Department's application of facts
available in the preliminary results to COP and CV data for certain
product models which KHC did not produce during the POR is
inappropriate. KHC contends that it submitted data for alternate models
which are similar, and that the Department can and should use this
alternate data, rather than resorting to facts available. In its case
brief, KHC argues that it did not submit costs data for the sales in
question because ``* * * it would have been virtually impossible, given
the schedule, for KHC to use pre-POR cost data to determine actual
costs; * * *.'' KHC argues that the Department intended to use the
costs of similar home market models, and stated this intention in its
analysis memorandum. KHC argues that the Department accepted similar
substitute model data numbers from the other respondent in the case.
KHC also argues that the Department is incorrect to conclude that KHC
``failed to provide any costs of certain models'' since it provided
costs data of similar products.
KHC further argues that, assuming the use of facts available is
appropriate, the Department should not use as facts available the
highest reported costs among all costs reported for all categories of
products, because to do so results in the unintended use of adverse
facts available. The Department should, KHC argues, revise its
calculation programs in the final results to ensure that no adverse
facts available are applied to KHC's cost data.
Petitioners argue that if the Department recalculates the margin
applicable to KHC it should use values which petitioners put forward as
facts available data for material, labor, fixed and variable overhead,
interest and general & administrative expenses.
Department's Position: Where KHC failed to provide cost data, we
used the highest average costs of models for which KHC did provide
data. The facts which we used constitute partial adverse facts
available, and are also the least adverse facts available on the
record. We did not use petitioners' suggested alternative values
because petitioners did not provide any supporting calculations or
rationales, and because we were in possession of verified average cost
data from KHC's submission. For the reasons below we disagree with each
of respondent's arguments.
KHC withheld information requested by the Department, then
belatedly offered different information, which did not fulfill the
request, in an unacceptable format. Section 776(a)(2) of the Act
provides in part that if an interested party withholds information that
has been requested or fails to provide such information in a timely
manner or in the form or manner requested, subject to section 782 (d)
and (e), the Department shall use facts otherwise available in reaching
the applicable determination.
The Department's July 10, 1998 questionnaire stated at D-IV-A that
``(t)he COP file should contain unit cost information for the foreign
like product manufactured for sale in the foreign market.'' Section D
also contained the instruction: ``If you have any questions regarding
the appropriate cost calculation period for the merchandise under
review, notify the Department in writing before preparing your response
to this section of the questionnaire'' (emphasis in original). Appendix
II of the questionnaire specified the computer-readable format
required. The cover letter for the questionnaire further stated: ``If
you have any questions about these or any other matters, please contact
the official in charge.'' See Letter from Department to KHC, July 10,
1998, page 1.
Both supplemental cost questionnaires (January 21 and February 17,
1999) requested information concerning models with missing product
quantity data, which are the same models as those with missing costs.
KHC did not consult the Department on this matter, and did not explain
its omission of quantity or cost data until its April 13, 1999 addendum
to its April 12, 1999 supplemental response, where it mentioned in
passing that the models were not produced during the POR.
KHC was in a position either to provide the requested data or
consult with the Department on acceptable alternative approaches, but
did neither. By repeatedly choosing not to respond adequately to
repeated requests for the data, as outlined below, KHC failed to
cooperate to the best of its ability. The Department may therefore use
an inference that is adverse to the interests of KHC in selecting among
the facts otherwise available, per section 776(b) and well-established
Department practice. See, for example, Notice of Final Determination of
Sales at Less Than Fair Value: Hot-Rolled Flat-Rolled Carbon-Quality
Steel Products From Japan (64 FR 24329, 24348, May 6, 1999).
KHC's April 13, 1999 list of alternates was unusable for four main
reasons. First, it was not the information that we requested. Second,
KHC provided no supporting documentation or worksheets to establish
that its suggested alternate models were indeed the most similar, and
were not models the use of which would result in a lower margin. This
was a significant omission since the codes are complex, covering five
product attributes and extending to well over 100 pairs of sixteen-
digit model numbers. Many different models could potentially represent
similar models to those for which KHC failed to provide quantity and
cost information. Third, even assuming the Department determined that
it should use the list KHC proffered, the list did not include a
computer-compatible version, as required by the Department's
questionnaire, but merely an unclear set
[[Page 69490]]
of hand-written notes which had been faxed and photocopied multiple
times. Fourth, it is the responsibility of the respondent to submit its
cost data in a useable format to the Department and with the specified
documentation and worksheets. See Sugiyama Chain Co. Ltd. et v. United
States, 797 F. Supp. 989, 994-995 (CIT 1992). KHC's tactics amounted to
an improper attempt to shift the task of compiling and categorizing its
alternate home market models to the Department.
KHC's argument that it would have been ``impossible'' to supply the
requested data is unpersuasive: KHC never asked for assistance or for
more time to collect and report the cost data in question. Instead, KHC
chose to ignore both the instructions in the questionnaire, already
cited, and basic statutory guidelines: section 782(c)(1) of the Act
requires that an interested party promptly notify the Department if it
is unable to submit information in the form and manner requested, and
that it provide a ``full explanation and suggested alternate forms'' in
which it is able to provide the information. KHC provided no such
notification or explanation.
KHC's belated claim concerning lack of time is in any case belied
by the facts. The Department extended this review by 4 months on
January 6, 1999 (64 FR 860), granted each of KHC's four requests for
extensions of deadlines to submit responses pertaining in whole or in
part to the cost section of our questionnaire, and accepted KHC's April
13, 1999 addendum to its second supplemental cost response, the due
date for which was April 12. See letters from the Department to KHC,
granting extensions, November 17, 1998 (Section D Cost Response
deadline moved from November 19 to December 4), February 3, 1999
(supplemental cost response deadline moved from February 5 to February
16), March 29, 1999 (second supplemental cost response deadline moved
from April 1 to April 9), and April 8, 1999 (second supplemental cost
response deadline moved again, from April 9 to April 12). KHC thus
received approximately six additional weeks in which to file its cost
responses. During this time KHC never mentioned the need to retrieve
pre-POR cost data. KHC only raised the timing problem in its case
brief, after the period for submission of new factual information had
closed. Moreover, KHC has failed to demonstrate why providing actual
cost data from a few months prior to the POR would be unreasonably
burdensome. The Department routinely requests and receives sales and
cost data from the months preceding a POR (see Antidumping
Questionnaire I-3, I-4, ``Contemporaneous Sales'').
Concerning the Department's use of alternate model data from
another respondent, the facts are not analogous. Yieh Hsing's
alternative model codes were only 4 in number, and were submitted in a
clear, timely, coherent response, duly accompanied by a computer-
readable version.
We also disagree with KHC's assertions that use of its highest
product cost is unduly punitive and that the Department intended to
apply some other less adverse facts available. KHC misreads the
analysis memo, which simply states, ``For models in which KHC failed to
provide the material, labor, fixed factory overhead, variable factory
overhead information, interest expenses, and general and administrative
expenses, necessary to complete our analysis, we used the costs of
similar home market models.'' This statement accurately describes the
Department's methodology. The Preliminary Results notice was more
specific in this regard, stating: ``Because KHC failed to provide any
costs for certain models, as facts available we used the highest
average cost for the same category of product.'' Thus, the Department
clearly stated its exact intent with respect to which facts available
it intended to apply for the unreported data.
We note that the facts we used are only partial adverse facts
available and are the least adverse verified facts available on the
record which would not reward non-compliance. Rather than applying the
highest calculated margin for the sales with unreported cost data, we
simply inserted the highest costs in order to complete the costs test
and leave the price-to-price analysis intact. We have relied upon KHC's
own verified data as our source of facts available. Use of costs other
than those we have used, such as KHC's overall, non-product specific
average costs, could reward KHC for failure to fully cooperate in this
review because use of such data could potentially result in a lower
margin than would have resulted from use of KHC's actual costs. Our
application of partial adverse facts available in this manner is
consistent with established practice because it is based on verified
data and is sufficiently adverse to induce KHC's cooperation in future
reviews. Accordingly, for these final results, we have continued to use
as partial facts available KHC's highest costs where KHC failed to
report actual costs.
Comment 3: KHC argues that although the verification report
suggests, on the basis of statements by KHC officials, that certain
packing costs were underreported, a close review of the data on the
record show that the costs in question were fully reported. Petitioners
did not comment on this issue.
Department's Position: Notwithstanding the doubts and confusion
raised at verification, the evidence indicates that the costs in
question were not underreported. Therefore we have not altered the
packing costs for these final results.
Yieh Hsing
Comment 4: With regards to Yieh Hsing, petitioners argue that the
Department should convert the reported per-ton packing expense for U.S.
sales to a per-kilo basis prior to its inclusion in constructed value,
and also that the Department should put constructed value on a per-ton
basis prior to the calculation of foreign unit price in dollars.
Department's Position: We agree with petitioners and have adjusted
our final results accordingly.
Comment 5: Yieh Hsing argues that the margin announced in the
preliminary results contains an incorrectly located decimal point.
Department's Position: This is a moot point, because the margin has
changed.
Yun Din
Comment 6: Concerning Yun Din, petitioners argue that, as it did in
the preliminary results, the Department should continue to apply the
highest rate available to this company because of the company's failure
to cooperate with the Department to the best of its ability following
the Department's requests for information.
Department's Position: With regard to Yun Din, we agree with
petitioners and have maintained our methodology from the preliminary
results.
Final Results of Review
As a result of this review, we determine that the following margins
exist:
[[Page 69491]]
------------------------------------------------------------------------
Margin
Manufacturer/exporter Period (percent)
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Yieh Hsing............................. 5/1/97-4/30/98 1.40
KHC.................................... 5/1/97-4/30/98 14.08
Yun Din................................ 5/1/97-4/30/98 14.08
Yieh Loong............................. 5/1/97-4/30/98 14.08
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The Department shall determine, and the U.S. Customs Service shall
assess, antidumping duties on all appropriate entries. The Department
shall issue appraisement instructions directly to the Customs Service.
For assessment purposes, we have calculated importer-specific duty
assessment rates for the merchandise based on the ratio of the total
amount of antidumping duties calculated for the examined sales to the
total entered value of sales examined. The Department will issue
appraisement instructions directly to the U.S. Customs Service.
Furthermore, the following deposit requirements will be effective
for all shipments of certain circular welded carbon steel pipes and
tubes from Taiwan entered, or withdrawn from the warehouse, for
consumption on or after the publication date of the final results of
these administrative reviews, as provided by section 751(a)(1) of the
Act: (1) For the companies named above, the cash deposit rates will be
the rates listed above; (2) for merchandise exported by manufacturers
or exporters not covered in this review but covered in the original
less-than-fair-value (LTFV) investigation or a previous review, the
cash deposit will continue to be the most recent rate published in the
final determination or final results for which the manufacturer or
exporter received a company-specific rate; (3) if the exporter is not a
firm covered in this review or the original investigation, but the
manufacturer is, the cash deposit rate will be that established for the
manufacturer of the merchandise in the final results of these reviews
or the LTFV investigation; and (4) if neither the exporter nor the
manufacturer is a firm covered in this or any previous reviews or the
original fair value investigation, the cash deposit rate will be 9.7%,
the ``all others'' rate established in the LTFV investigation.
This notice also serves as a reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during these review periods. 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.
This notice also serves as a reminder to parties subject to
administrative protective orders (APOs) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with sections 351.305 and 351.306 of the Department's
regulations. Timely written notification of the return/destruction of
APO materials or conversion to judicial protective order is hereby
requested. Failure to comply with the regulations and terms of an APO
is a violation which is subject to sanction.
This administrative review and notice are in accordance with
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.
Dated: December 6, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-32228 Filed 12-10-99; 8:45 am]
BILLING CODE 3510-DS-P
