E6-1880. Notice of Final Results of Antidumping Duty Administrative Review and Final Partial Rescission: Certain Cut-to-Length Carbon Steel Plate from Romania

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On September 8, 2005, the Department of Commerce (“the Department”) published the preliminary results of the administrative review of the antidumping duty order on certain cut-to-length carbon steel plate from Romania. The review covers Mittal Steel Galati, S.A. (“Mittal Steel”, formerly Ispat Sidex S.A.) a manufacturer of the subject merchandise, and Metalexportimport SA (“MEI”), an unaffiliated exporter. The period of review is August 1, 2003, through July 31, 2004. This administrative review also covers additional producers/exporters of the subject merchandise: Metanef, S.A. (“Metanef”), MINMET S.A. (“MINMET”), CSR SA Resita (“CSR”) and Combinatul de Oteluri Speciali Tirgoviste (“COST”), for which the Department is now finally rescinding this review because these producers/exporters, with the exception of CSR, did not ship subject merchandise during the period of review (“POR”). With respect to CSR, Nucor Corporation (“Nucor”), a petitioner in this proceeding, filed a timely request for withdrawal of the administrative review for this company.

EFFECTIVE DATE:

February 6, 2006.

FOR FURTHER INFORMATION CONTACT:

Patrick Edwards or John Drury, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On September 8, 2005, the Department published the preliminary results of the administrative review of the antidumping duty order on certain cut-to-length carbon steel plate (“cut-to-length plate”) from Romania. See Certain Cut-to-Length Carbon Steel Plate from Romania: Preliminary Results of the Antidumping Duty Administrative Review and Partial Rescission, 70 FR 53333 (September 8, 2005) (“Preliminary Results”). We invited parties to comment on the Preliminary Results. Since the publication of the Preliminary Results, the following events have occurred.

On September 16, 2005, Mittal Steel notified the Department that in the process of preparing a pre-verification reconciliation package for a separate proceeding, the company discovered a significant quantity of subject merchandise that it failed to report in response to the Department's section A questionnaire in this administrative review. See Memorandum from John Drury to the File, dated September 16, 2005. On September 20, 2005, Mittal Steel submitted a letter to the Department indicating that it would not participate in the cost verification, scheduled to begin on September 26, 2005, in Galati, Romania. The Department received additional correspondence from Mittal Steel on September 23, 2005, notifying the Department that, with the exception of case briefs and rebuttals and any hearing held in this administrative review, Mittal Steel would no longer “actively participate” in the proceeding. See Letter from Mittal Steel to the Secretary of Commerce, dated September 23, 2005. Additionally, Mittal Steel requested that the Department remove all of the company's business proprietary data submitted during the course of this review and return or destroy that data. On October 13, 2005, the Department issued a letter to Mittal Steel, indicating that the Department was in the process of removing all business proprietary information of Mittal Steel that was currently on the record of this review and that the Department had instructed all parties to the proceeding to remove and certify the destruction of Mittal Steel's proprietary information. On October 14, 2005, the Department notified Mittal Steel that all business proprietary data submitted during the course of this review had been destroyed and that all parties to this proceeding had also confirmed the destruction of Mittal Steel's business proprietary data in their possession. See Memorandum from Patrick Edwards to the File, dated October 14, 2005. On October 18, 2005, the Department received correspondence from MEI, also requesting the removal of business proprietary information that it had submitted on the record during the course of this administrative review. Accordingly, the Department then removed all of MEI's business proprietary data from the record.

On October 17, 2005, the Department transferred to the record of this administrative review certain documentation from the immediately preceding administrative review (i.e., the 2002-2003 Administrative Review of Certain Cut-to-Length Carbon Steel Plate from Romania) to facilitate the Department's analysis for these final results. See Memorandum to the File from Patrick Edwards, Case Analyst, regarding Transfer of Information to Record, dated October 17, 2005. On October 19, 2005, Mittal Steel submitted a letter to the Department, objecting to the transfer of documentation from the 2002-2003 administrative review to the record of this proceeding, stating that the Department's actions resulted in Nucor's access to Mittal Steel's 2002-2003 business proprietary data, which the Department had determined in the immediately preceding review that Nucor's counsel was not entitled to access. See Letter from Mittal Steel to the Secretary of Commerce, dated October 19, 2005. Mittal Steel asserts that its business proprietary data from the immediately preceding review is currently part of the administrative record filed with the Court of International Trade in the ongoing litigation in Mittal Steel Galati SA v. United States, Court No. 05-00311. Thus, Mittal Steel requested that the Department deny Nucor access to the business proprietary information transferred to the record of this review, because Nucor was denied APO access to the data in the immediately preceding review because Nucor filed an untimely request for an administrative protective order (“APO”). See Letter from Ann Sebastian, Director APO Unit, Import Administration to Alan H. Price, Wiley, Rein & Fielding, dated November 12, 2004.

On October 20, 2005, Nucor filed a response to Mittal Steel's letter of October 19, 2005, stating that it is entitled to access the business proprietary information transferred to the record of this administrative review, as the 2002-2003 and 2003-2004 reviews are two separate proceedings, the latter of which Nucor's APO application was approved by the Department and, as such, is entitled to access all APO information which the Department places on the record as an “authorized applicant”. See Letter from Nucor Corporation to the Secretary of Commerce, dated October 20, 2005. On October 24, 2005, the Department sent a letter to counsel for Mittal Steel, stating that, as authorized applicants under the APO, counsel for Nucor is entitled to receive access to all business proprietary information presented to or obtained by the Department in this segment of the proceeding under 19 CFR sections 351.305 and 351.306. See Letter from Anne M. Sebastian, Director, APO Unit, Import Administration, to John Gurley, Arent Fox PLLC, dated October 24, 2005.

On October 28, 2005, we received a case brief from Mittal Steel. We received a case brief from Nucor and IPSCO Steel Inc., (“IPSCO”) (collectively, “petitioners”) on October 28, 2005. We received rebuttal briefs from IPSCO and Mittal Steel on November 2, 2005. Mittal Steel had requested a public hearing in this review, but withdrew its request on November 1, 2005. Therefore, no public hearing was held.

On December 28, 2005, because it was not practicable to complete the final results within the specified time period, the Department extended the deadline for the completion of the final results by thirty days. See Notice of Extension of Final Results of the 2003-2004 Antidumping Duty Administrative Review of Certain Cut-to-Length Plate from Romania, 70 FR 76764 (December 28, 2005).

Final Partial Rescission

In our preliminary results, we announced our determination to rescind the review with respect to Metanef, MINMET, and COST, because these parties had no entries or shipments of cut-to-length plate from Romania during the POR. We additionally announced our preliminary determination to rescind the review with respect to CSR, as petitioners withdrew their request for review with regard to this company. See Preliminary Results. We have received no new information or evidence of changed circumstances that would cause the Department to reconsider that determination. Therefore, we are rescinding the administrative review with respect to Metanef, MINMENT, CSR and COST.

Scope of the Order

The products covered by this order include hot-rolled carbon steel universal mill plates (i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 millimeters but not exceeding 1,250 millimeters and of a thickness of not less than 4 millimeters, not in coil and without patterns in relief), of rectangular shape, neither clad, plated nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances; and certain hot-rolled carbon steel flat-rolled products in straight lengths, of rectangular shape, hot rolled, neither clad, plated, nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances, 4.75 millimeters or more in thickness and of a width which exceeds 150 millimeters and measures at least twice the thickness, as currently classifiable in the HTS under item numbers 7208.31.0000, 7208.32.0000, 7208.33.1000, 7208.33.5000, 7208.41.0000, 7208.42.0000, 7208.43.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.11.0000, 7211.12.0000, 7211.21.0000, 7211.22.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, and 7212.50.0000. Included under this order are flat-rolled products of nonrectangular cross-section where such cross-section is achieved subsequent to the rolling process (i.e., products which have been “worked after rolling”)—for example, products which have been bevelled or rounded at the edges. Excluded from this review is grade X-70 plate. These HTS item numbers are provided for convenience and customs purposes. The written description remains dispositive.

Analysis of Comments Received

The issues raised in the case briefs by parties to this administrative review are addressed in the Issues and Decision Memorandum to David M. Spooner, Assistant Secretary for Import Administration, from Stephen Claeys, Deputy Assistant Secretary (“Decision Memorandum”), which is hereby adopted by this notice. A list of the issues addressed in the Decision Memorandum is appended to this notice. The Decision Memorandum is on file in the Central Records Unit in Room B-099 of the main Commerce building, and can also be accessed directly on the Web at http://ia.ita.doc.gov/​frn. The paper copy and electronic version of the Decision Memorandum are identical in content.

Facts Available

Pursuant to sections 776(a)(2)(A) and (C) and 776(b) of the Tariff Act of 1930, as amended (“the Act”), the Department finds that the application of adverse facts available (“AFA”) is warranted with regard to Mittal Steel and MEI because both companies decided to terminate their participation in this review and removed their business proprietary information from the record, and thus have significantly impeded the Department's completion of the review. See Letter from Mittal Steel to the Secretary of Commerce, dated September 23, 2005. In addition, the Department finds that those companies have failed to cooperate to the best of their abilities, within the meaning of section 776(b) of the Act, as discussed further below.

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 or the Commission under this title, (B) fails to provide such information by the deadlines for 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 and the Commission shall, subject to section 782(d), use the facts otherwise available in reaching the applicable determination under this title. Section 782(d) of the Act provides that if a response to a request for information does not comply with the request, the Department shall promptly notify the respondent of the nature of the deficiency and shall, to the extent practicable, provide an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of the review. Furthermore, section 776(b) of the Act provides that, if a party has failed to act to the best of its ability to comply with the Department's request for information, the Department may apply an adverse inference. See also, the Statement of Administrative Action (“SAA”), accompanying the URAA, H.R. Rp. No. 316, 103rd Cong., 2d Sess. 870.

We find that facts available is warranted in accordance with section 776(a)(2)(A) and (C) of the Act, because Mittal Steel and MEI unilaterally decided to terminate their participation in this review, and both companies removed their business proprietary information submitted through their responses to the Department's antidumping duty questionnaires from the record information necessary to calculate a margin for these companies. As such, the Department is significantly impeded in calculating a margin because critical information regarding Mittal Steel and MEI's sales and quantities of sales in the home market and in the United States are only obtainable from the companies' questionnaire responses. Therefore, an accurate margin for these companies cannot be determined. Section 782(d) of the Act does not apply in this situation because Mittal Steel and MEI have terminated their participation in the review. Thus, we are using facts available, in accordance with sections 776(a)(2)(A) and (C) of the Act.

Section 776(b) of the Act provides that, in selecting from among the facts available, the Department may use an inference that is adverse to the interests of the respondent, if it determines that a party has failed to cooperate to the best of its ability. The Department finds that Mittal Steel and MEI have failed to cooperate to the best of their abilities because these companies could comply with the Department's request for information as indicated by the completed questionnaire responses that Mittal Steel and MEI submitted on the record before they withdrew these responses. Mittal Steel and MEI withdrew all of their business proprietary questionnaire responses and, thus, gave insufficient attention to their statutory duty to provide the Department with complete and accurate information. For all of the aforementioned reasons, the Department finds that Mittal Steel and MEI failed to cooperate to the best of their abilities. For a detailed analysis of the Department's decision to apply AFA, see Memorandum from John Drury and Patrick Edwards, Case Analysts, to the File: Final Results in the Antidumping Duty Administrative Review of Certain Cut-to-Length Carbon Steel Plate form Romania: Total Adverse Facts Available and Corroboration Memorandum for Company Rate, dated February 6, 2006.

Therefore, in selecting from the facts available, the Department determines that an adverse inference is warranted. In accordance with section 776(b) of the Act, because of Mittal Steel and MEI's removal of all business proprietary data upon which any accurate margin could be calculated, the Department is applying total AFA to both Mittal Steel and MEI. For purposes of these final results, the Department will apply as AFA the current “all-others” rate of 75.04 percent, which is based on the final determination of the less-than-fair value investigation and is also the highest rate from any prior segment of this proceeding. See Final Determination of Sales at Less-Than-Fair Value: Certain Cut-to-Length Carbon Steel Plate from Romania, 58 FR 37209 (July 9, 1993).

We note that, in making adverse inferences, the SAA authorizes the Department to consider the extent to which a party may benefit from its own lack of cooperation. See SAA at 870. For purposes of our final results, we have carefully analyzed the rates contained in the petition and the rates in the less-than-fair-value (“LTFV”) investigation. Given that the 75.04 percent rate is the highest rate from any prior segment of this proceeding, and that Mittal Steel's calculated dumping margin from the Preliminary Results was 48.90 percent, we find that the 75.04 percent rate will prevent Mittal Steel or MEI from benefiting from its lack of cooperation in this administrative review. For a detailed analysis of the Department's corroboration of the assigned adverse-facts-available rate and further detail on the Department's determination to apply AFA to these companies, see Final Determination in the Antidumping Duty Administrative Review of Certain Cut-to-Length Carbon Steel Plate from Romania: Total Adverse Facts Available Corroboration Memorandum for Company Rate, from John Drury and Patrick Edwards, Case Analysts, to the File, dated February 6, 2006 (“Corroboration Memorandum”).

Corroboration of Secondary Information Used as AFA

Section 776(c) of the Act provides that when the Department relies on the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. The SAA states that “corroborate” means to determine that the information used has probative value. See SAA at 870. The Department has determined that to have probative value, information must be reliable and relevant. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished from Japan, 61 FR 57391, 57392 (November 6, 1996). The SAA also states that independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and Customs data, and information obtained from interested parties during the particular investigation. See Preliminary Determination of Sales at Less than Fair Value: High and Ultra-High Voltage Ceramic Station Post insulators from Japan, 68 FR 35627 (June 16, 2003); and Final Determination of Sales at Less than Fair Value: Live Swine from Canada, 70 FR 12181 (March 11, 2005).

The reliability of the AFA rate was determined by the calculation of the “Romania-wide” rate in the original LTFV investigation, and on the most appropriate surrogate value information available to the Department in the investigation, as well as information gathered by the Department during the present administrative review. Furthermore, the calculation of the final margins and the “Romania-wide” rate from the investigation was subject to comment from interested parties in the proceeding. See Final Determination of Sales at Less than Fair Value: Certain Cut-to-Length Carbon Steel Plate from Romania, 58 FR 37209 (July 9, 1993). Moreover, this rate was used in the immediately preceding administrative review as the “all others” rate and no interested party challenged the reliability of this rate. As discussed further in the Corroboration Memorandum, the Department has received no information to date that warrants revisiting the issue of the reliability of the “all-others” rate calculation itself. Thus, the Department finds that the margin calculated in the LTFV investigation is reliable.

With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in Fresh Cut Flowers from Mexico: Final Results of Antidumping Administrative Review, 61 FR 6812 (February 22, 1996), the Department disregarded the highest margin in that case as adverse best information available (the predecessor to facts available) because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin. Similarly, the Department does not apply a margin that has been discredited. See D&L Supply Co. v. United States, 113 F. 3d 1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin that has been judicially invalidated). None of these unusual circumstances are present here. As there is no information on the record of this review that indicates that this rate is not relevant as AFA for Mittal Steel or MEI, we determine that this rate has probative value. Accordingly, we determine that the highest rate determined in any segment of this administrative proceeding (i.e., 75.04 percent) is in accord with section 776(c) of the Act's requirement that secondary information be corroborated (i.e., that it have probative value). For further explanation of the Department's corroboration methodology in this review, see Corroboration Memorandum.

Final Results of Review

As a result of our review, we determine that the following margin based on AFA exists for the period of August 1, 2003, through July 31, 2004:

Producer	Margin (percentage)
Mittal Steel Galati S.A.	75.04
Metalexportimport S.A.	75.04

Assessment

The Department shall determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries. For Mittal Steel and MEI, we will instruct CBP to liquidate entries at the rate indicated above. The Department will issue appropriate assessment instructions directly to the CBP within 15 days of publication of these final results of review.

Cash Deposit Requirements

Furthermore, the following deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of certain cut-to-length plate from Romania entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results, as provided by section 751(a) of the Act: (1) for the company covered by this review, the cash deposit rate will be the rate listed above; (2) for merchandise exported by producers or exporters not covered in this review but covered in the investigation, the cash deposit rate will continue to be the company-specific rate from the final determination; (3) if the exporter is not a firm covered in this review or the investigation, but the producer is, the cash deposit rate will be that established for the producer of the merchandise for the most recent period; and (4) if neither the exporter nor the producer is a firm covered in this review or the investigation, the cash deposit rate will be 75.04 percent, the “Romania-wide” rate established in the less-than-fair-value investigation. These deposit requirements shall remain in effect until publication of the final results of the next administrative review.

This notice also serves as a final 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 this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred, and in the subsequent assessment of double antidumping duties.

This notice also is the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. 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 the terms of an APO is a sanctionable violation.

We are issuing and publishing these results and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

Dated: February 3, 2006.

David M. Spooner,

Assistant Secretary for Import Administration.