E6-1508. Stainless Steel Bar From Germany: Preliminary Results of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce is conducting an administrative review of the antidumping duty order on stainless steel bar from Germany. The period of review is March 1, 2004, through February 28, 2005. This review covers imports of stainless steel bar from one producer/exporter.

We have preliminarily found that sales of subject merchandise sold by BGH Edelstahl Freital GmbH, BGH Edelstahl Lippendorf GmbH, BGH Edelstahl Lugau GmbH, and BGH Edelstahl Siegen GmbH have been made at less than normal value. We invite interested parties to comment on these preliminary results. We will issue the final results not later than 120 days from the date of publication of this notice.

EFFECTIVE DATE:

February 3, 2006.

FOR FURTHER INFORMATION CONTACT:

Brandon Farlander or Andrew Smith, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On March 7, 2002, the Department of Commerce (“the Department”) published an antidumping duty order on stainless steel bar from Germany. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Stainless Steel Bar from Germany, 67 FR 10382 (March 7, 2002) (“LTFV Final”). On October 10, 2003, the Department published an amended antidumping duty order on stainless steel bar from Germany. See Notice of Amended Antidumping Duty Orders: Stainless Steel Bar from France, Germany, Italy, Korea, and the United Kingdom, 68 FR 58660 (October 10, 2003).

On March 1, 2005, the Department published its Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 70 FR 9918 (March 1, 2005). On March 31, 2005, in accordance with 19 CFR 351.213(b), the Department received a timely request for review from BGH Edelstahl Freital GmbH, BGH Edelstahl Lippendorf GmbH, BGH Edelstahl Lugau GmbH, and BGH Edelstahl Siegen GmbH (collectively “BGH”), and from Stahlwerke Ergste Westig GmbH/Ergste Westig South Carolina (“SEW”). On March 31, 2005, Carpenter Technology Corp., Crucible Specialty Metals Division of Crucible Materials Corp., and Electralloy Corp. requested that the Department conduct an administrative review of BGH.

In accordance with 19 CFR 351.221(b)(1), we published a notice of initiation of this antidumping duty administrative review on April 22, 2005. See Notice of Initiation of Antidumping and Countervailing Duty Administrative Reviews, 70 FR 20862 (April 22, 2005). The period of review (“POR”) is March 1, 2004, through February 28, 2005.

Sections A, B, C, and D of the Department's antidumping duty questionnaire were sent to BGH on April 25, 2005. Sections A, B, and C of the Department's antidumping duty questionnaire were sent to SEW on April 25, 2005.

On May 9, 2005, BGH requested that it be relieved from the requirement to report affiliated party resales because sales of the foreign like product to affiliated parties during the POR constituted less than five percent of total sales of the foreign like product. On May 25, 2005, we granted BGH's request in accordance with 19 CFR 351.403(d). See Memorandum to Susan Kuhbach, “Reporting of BGH's Home Market Sales by an Affiliated Party,” dated May 25, 2005, which is in the Department's Central Records Unit, located in Room B-099 of the main Department building (“CRU”).

We received timely responses to the Department's antidumping duty questionnaire from BGH on May 23 and June 22, 2005. We received a timely response to Section A of the Department's antidumping duty questionnaire from SEW on May 23, 2005.

On June 14, 2005, SEW timely withdrew its request for an administrative review. SEW's request was the only request for an administrative review of SEW's U.S. sales. In accordance with 19 CFR 351.213(d)(1), the Department rescinded its antidumping administrative review of SEW. See Notice of Rescission, in Part, of Antidumping Duty Administrative Review: Stainless Steel Bar from Germany, 70 FR 37084 (June 28, 2005).

We issued a supplemental questionnaire to BGH on July 6, 2005. We received a response from BGH on August 2, 2005. On October 20, 2005, we determined that the four production companies comprising BGH should be considered one entity for the purposes of this proceeding. See Memorandum to Gary Taverman, “Third Antidumping Administrative Review of Stainless Steel Bar from Germany,” dated October 20, 2005, which is on file in the Department's CRU. We issued an additional supplemental questionnaire to BGH on November 2 and received a timely response from BGH on November 29, 2005. We also issued supplemental questionnaires to BGH on November 22, 2005, January 11, and January 20, 2006. We received timely responses from BGH on December 20, 2005, January 23, and January 24, 2006, respectively.

Scope of the Order

For the purposes of this order, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.

Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (i.e., cut length rolled products which if less than 4.75 mm in thickness have a width measuring at least 10 times the thickness, or if 4.75 mm or more in thickness having a width which exceeds 150 mm and measures at least twice the thickness), products that have been cut from stainless steel sheet, strip or plate, wire (i.e., cold-formed products in coils, of any uniform solid cross section along their whole length, which do not conform to the definition of flat-rolled products), and angles, shapes and sections.

The stainless steel bar subject to this review is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

Fair Value Comparisons

To determine whether sales of stainless steel bar by BGH to the United States were made at less than normal value (“NV”), we compared the export price (“EP”) to NV, as described in the “Export Price” and “Normal Value” sections of this notice, below.

Pursuant to section 777A(d)(2) of the Tariff Act of 1930, as amended (“the Act”), we compared the EPs of individual U.S. transactions to the weighted-average NV of the foreign like product, where there were sales made in the ordinary course of trade, as discussed in the “Normal Value” section of this notice.

Product Comparisons

In accordance with section 771(16) of the Act, we considered all products produced by BGH covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. In accordance with section 773(a)(1)(C)(ii) of the Act, 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 BGH's volume of home market sales of the foreign like product to the volume of its U.S. sales of the subject merchandise. (For further details, see the “Normal Value” section of this notice.)

We compared U.S. sales to sales made in the comparison market within the contemporaneous window period, which extends from three months prior to the POR until two months after the POR. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making product comparisons, consistent with the Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Bar from Germany, 67 FR 3159 (January 23, 2002) and Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Stainless Steel Bar from Germany, 67 FR 10382 (March 7, 2002) (collectively “LTFV Final”), we matched foreign like products based on the physical characteristics reported by BGH in the following order: general type of finish; grade; remelting process; type of final finishing operation; shape; and size.

Export Price

We calculated EP in accordance with section 772(a) of the Act because the merchandise was sold to the first unaffiliated purchaser in the United States prior to importation by the exporter or producer outside the United States and because constructed export price methodology was not otherwise warranted. We based EP on the packed ex-works, cost, insurance and freight, or delivered price to unaffiliated purchasers in the United States. We calculated the correct starting price by accounting for billing adjustments and early payment discounts. We also made deductions from the starting price for movement expenses in accordance with section 772(c)(2)(A) of the Act. These deductions included foreign inland freight, international freight, brokerage and handling, U.S. other transportation expense, country of manufacture inland insurance, U.S. inland insurance, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), and U.S. inland freight, where applicable.

Normal Value

A. 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 (i.e., whether the aggregate volume of home market sales of the foreign like product is equal to or greater than five percent of the aggregate volume of U.S. sales), we compared BGH's volume of home market sales of the foreign like product to the volume of its U.S. sales of the subject merchandise, in accordance with 19 CFR 351.404(b)(2). Because BGH's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales for the subject merchandise, we determined that the home market was viable.

B. Affiliated-Party Transactions and Arm's-Length Test

The Department's practice with respect to the use of home market sales to affiliated parties for NV is to determine whether such sales are at arm's-length prices. See 19 CFR 351.403(c). BGH made sales in the home market to affiliated and unaffiliated customers. To test whether the sales to affiliates were made at arm's-length prices, we compared the starting prices of sales to affiliated and unaffiliated customers net of all movement charges, direct selling expenses, discounts, and packing. Where the price to the affiliated party was, on average, within a range of 98 to 102 percent of the price of the same or comparable merchandise to the unaffiliated parties, we determined that the sales made to the affiliated party were at arm's length. See Antidumping Proceedings: Affiliated Party Sales in the Ordinary Course of Trade, 67 FR 69186 (November 15, 2002). In accordance with the Department's practice, we only included in our margin analysis those sales to affiliated parties that were made at arm's length (and which passed the cost test described below).

C. Cost of Production

Because we disregarded sales below the cost of production (“COP”) in the last completed review for BGH (see Notice of Final Results of Antidumping Duty Administrative Review: Stainless Steel Bar from Germany, 70 FR 19419 (April 13, 2005)), we had reasonable grounds to believe or suspect that sales of the foreign like product under consideration for the determination of NV in this review may have been made at prices below the COP, as provided by section 773(b)(2)(A)(ii) of the Act. Therefore, pursuant to section 773(b)(1) of the Act, we requested that BGH respond to section D, the cost of production/constructed value section of the questionnaire.

We conducted the COP analysis described below.

1. Calculation of COP

In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of BGH's cost of materials and fabrication for the foreign like product, plus amounts for general and administrative expenses (“G&A”), and interest expenses. We relied on the COP information provided by BGH, except in the following instances.

According to section 773(f)(3) of the Act and 19 CFR 351.407(b) (“Major Input Rule”), the Secretary normally will determine the value of a major input purchased from an affiliated person based on the higher of: (1) the price paid by the exporter or producer to the affiliated person for the major input; (2) the amount usually reflected in sales of the major input in the market under consideration; or (3) the cost to the affiliated person of producing the major input. In its June 22, 2005, Section D response at Exhibit D-4, BGH reported that it purchases scrap and alloy inputs from affiliated trading companies.

We have not applied the Major Input Rule to BGH's scrap or alloy purchases because the purchases were from affiliated trading companies that did not produce the inputs that they supplied to BGH. Instead, we have applied the valuation rules described in section 773(f)(2) of the Act, the “Transactions Disregarded Rule.” Under the Transactions Disregarded Rule, a transaction directly or indirectly between affiliated persons may be disregarded if, in the case of any element of value required to be considered, the amount representing that element does not fairly reflect the amount usually reflected in sales of merchandise under consideration in the market under consideration.

We applied the Transactions Disregarded Rule to BGH's scrap and alloy input purchases from affiliated trading companies during the POR, comparing the transfer prices to BGH's third-party purchase prices, as provided in Exhibit SD-19 of the November 29, 2005, supplemental Section D questionnaire response. As a result of this comparison, we have determined that BGH received affiliated party inputs at less than market value prices. Therefore, we made an upward adjustment to BGH's cost of manufacturing, for all products, for affiliated party transactions occurring at less than market value in accordance with section 773(f)(2) of the Act.

In addition, BGH reported unique G&A expense ratios for each production company, and weight-averaged those ratios to create a single BGH G&A expense ratio for all CONNUMs. We calculated CONNUM-specific G&A expenses by weighting the G&A ratios for each production company by the production of each CONNUM at each facility. In our revised G&A ratios, we also included the administrative expenses incurred by BGH's parent company, Boschgotthardshutte O. Breyer Gmbh (“BOB”), which were not allocable to BOB's cost of leasing fixed assets. For further explanation about these cost adjustments, see Memorandum from Case Accountant to Neal Halper, Director, “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - BGH Group, Inc.,” dated January 30, 2006.

2. Test of Home Market Sales Prices

On a product-specific basis, we compared the adjusted, weighted-average COP to the home market sales of the foreign like product during the POR, as required under section 773(b) of the Act, in order to determine whether the sales prices were below the COP. The prices were exclusive of any applicable movement charges, billing adjustments, commissions, discounts, rebates and indirect selling expenses. In determining whether to disregard home market sales made at prices below the COP, we examined, in accordance with section 773(b)(1)(A) of the Act, whether such sales were made (1) within an extended period of time in substantial quantities, and (2) at prices which did not permit the recovery of all costs within a reasonable period of time.

3. Results of the COP Test

Pursuant to section 773(b)(1) of the Act, where less than 20 percent of the respondent's sales of a given product are made at prices below the COP, we do not disregard any below-cost sales of that product because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we determine that in such instances the below cost sales represent “substantial quantities” within an extended period of time in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales are made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.

We found that, for certain specific products, more than 20 percent of the comparison market sales were at prices less than the COP and, thus, the below-cost sales were made within an extended period of time in substantial quantities. In addition, these sales were made at prices that did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1).

D. Level of Trade

In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP transaction or constructed export price (“CEP”) transaction. The LOT in the comparison market is the LOT of the starting-price sales in the comparison market or, when NV is based on CV, the LOT of the sales from which we derive SG&A expenses and profit. With respect to U.S. price for EP transactions, the LOT is also that of the starting-price sale, which is usually from the exporter to the importer. For CEP, the LOT is that of the constructed sale from the exporter to the importer. To determine whether comparison market sales are at a different LOT from U.S. sales, we examined stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, the Department makes an LOT adjustment in accordance with section 773(a)(7)(A) of the Act. For CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. We analyze whether different selling activities are performed, and whether any price differences (other than those for which other allowances are made under the Act) are shown to be wholly or partly due to a difference in LOT between the CEP and NV. Under section 773(a)(7)(A) of the Act, we make an upward or downward adjustment to NV for LOT if the difference in LOT involves the performance of different selling activities and is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different LOTs in the country in which NV is determined. Finally, if the NV LOT is at a more advanced stage of distribution than the LOT of the CEP, but the data available do not provide an appropriate basis to determine an LOT adjustment, we reduce NV by the amount of indirect selling expenses incurred in the foreign comparison market on sales of the foreign like product, but by no more than the amount of the indirect selling expenses incurred for CEP sales. See section 773(a)(7)(B) of the Act (the CEP offset provision). In analyzing differences in selling functions, we determine whether the LOTs identified by the respondent are meaningful. See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27371 (May 19, 1997). If the claimed LOTs are the same, we expect that the functions and activities of the seller should be similar. Conversely, if a party claims that LOTs are different for different groups of sales, the functions and activities of the seller should be dissimilar. See Porcelain-on-Steel Cookware from Mexico: Final Results of Administrative Review, 65 FR 30068 (May 10, 2000).

BGH reported four channels of distribution in the home market. Channels 1 and 2 were made-to-order sales to distributors and end-users, respectively. Channels 3 and 4 were sales from inventory to distributors and end-users, respectively. We examined the selling functions reported by BGH for each of these channels and found that made-to-order sales in channels 1 and 2 were similar with respect to sales process, freight services, inventory maintenance, and warranty service. We also found that because channel 3 sales were made from inventory, they differed from channel 1 and 2 made-to-order sales with respect to inventory services, but that they were otherwise similar to channels 1 and 2 with respect to sales process, freight services, and warranty service. Therefore, we found that channels of distribution 1, 2 and 3 were sufficiently similar to constitute a distinct level of trade (LOTH 1).

BGH included in distribution channel 4 any sale made from inventory in which “other revenue” was reported on the invoice. BGH considered these channel 4 sales to be a separate LOT because of service center selling functions provided for bar sold through this channel. “Other revenue” is a separate charge appearing on the invoice for special services performed by the inventory warehouse, such as cutting, grinding, special finishing and additional testing. We agree with BGH that the “other revenue” charged on certain sales is indicative of service center functions and that these sales are distinct from LOTH 1 with respect to sales process and inventory maintenance, and as such constitute a separate level of trade, LOTH 2.

BGH reported EP sales through two channels of distribution, made-to-order sales to distributors (channel 1) and warehouse inventory sales to distributors (channel 3). We examined the chain of distribution and the selling activities associated with sales through these channels and found them to be similar with respect to sales process, freight services, and warranty service. Therefore, we determine that the two EP channels of distribution constitute a single LOT (LOTU 1).

The EP LOT differed considerably from LOTH 2 with respect to sales process and warehousing/inventory maintenance. However, the EP LOT is similar to LOTH 1 with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. Consequently, we matched the EP sales to sales at the same LOT in the home market (LOTH 1). Where no matches at the same LOT were possible, we matched to sales in LOTH 2 and we made a LOT adjustment. See section 773(a)(7)(A) of the Act.

E. Calculation of Normal Value Based on Comparison Market Prices

We calculated NV based on the ex-works or delivered price to unaffiliated customers or prices to affiliated customers that we determined to be at arm's length. We identified the correct starting price by accounting for billing adjustments, early payment discounts, other discounts, rebates and interest revenue. In accordance with section 773(a)(6)(B)(ii) of the Act, we made deductions for inland freight and inland insurance. We also made adjustments, in accordance with 19 CFR 351.410(e), for indirect selling expenses incurred in the home market or on U.S. sales where commissions were granted on sales in one market but not in the other (the commission offset).

Furthermore, 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. In addition, where appropriate, we made adjustments for differences in circumstances of sale (“COS”) in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 by deducting direct selling expenses incurred on comparison market sales (credit expenses), and adding U.S. direct selling expenses (credit expenses). Where payment dates were unreported, we recalculated the credit expenses using the last date of new information received in place of actual date of payment. We 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, where appropriate, we made an adjustment for differences in LOT under section 773(a)(7)(A) of the Act and 19 CFR 351.412(b)-(e).

Preliminary Results of Review

We preliminarily find that the following dumping margin exists for the period March 1, 2004, through February 28, 2005.

Manufacturer/Exporter	Margin
BGH	1.06 percent

Assessment Rates

Upon completion of this administrative review, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b), the Department calculates an assessment rate for each importer of the subject merchandise. Upon issuance of the final results of this administrative review, if any importer (or customer)-specific assessment rates calculated in the final results are above de minimis (i.e., at or above 0.5 percent), the Department will issue appraisement instructions directly to CBP to assess antidumping duties on appropriate entries. To determine whether the duty assessment rates covering the period were de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer (or customer)-specific ad valorem rates by aggregating the dumping margins calculated for all U.S. sales to that importer (or customer) and dividing this amount by the entered value of the sales to that importer (or customer).

The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of this review.

Cash Deposit Rates

The following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of stainless steel bar from Germany 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)(1) of the Act: (1) The cash deposit rate listed above for each specific company will be the rate established in the final results of this review, except if a rate is less than 0.5 percent, and therefore de minimis, the cash deposit will be zero; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value investigation, but the producer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this review, the cash deposit rate will be 16.96 percent, the “all others” rate established in the LTFV Final.

Public Comment

Any interested party may request a hearing within 30 days of publication of this notice. A hearing, if requested, will be 37 days after the publication of this notice, or the first business day thereafter. Issues raised in the hearing will be limited to those raised in the case and rebuttal briefs. Interested parties may submit case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than 35 days after the date of publication of this notice. Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument with an electronic version included.

The Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any such written briefs or hearing, within 120 days of publication of these preliminary results.

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.

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

Dated: January 27, 2006.

David M. Spooner,

Assistant Secretary for Import Administration.