[Federal Register Volume 59, Number 65 (Tuesday, April 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8024]
[[Page Unknown]]
[Federal Register: April 5, 1994]
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DEPARTMENT OF COMMERCE
[A-428-013]
Cold-Rolled Stainless Steel Sheet From Germany; Final Results of
Antidumping Duty Administrative Review
agency: International Trade Administration/Import Administration,
Department of Commerce.
action: Final results of antidumping duty administrative review.
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summary: On May 21, 1992, the Department of Commerce issued the final
results of its administrative review of the antidumping duty order on
cold-rolled stainless steel sheet from the Federal Republic of Germany.
We conducted this antidumping duty administrative review pursuant to a
remand order from the U.S. Court of International Trade in Krupp Stahl,
A.G., et al. v. United States (Slip Op. 91-31, April 19, 1991).
In that decision, the court ruled that the Department had illegally
applied its automatic assessment regulation to Krupp's December 1982
through June 1983 entries because the original less-than-fair-value-
investigation was initiated prior to the October 30, 1984, amendment to
the Tariff Act of 1930 and prior to the October 22, 1986, amendment to
the effective date provision of the 1984 Act. Because the 1984 and 1986
amendments are not retroactive, the court held that Krupp was entitled
to an automatic review of its entries.
The review covers one manufacturer/exporter of subject merchandise,
Krupp Stahl, A.G., and the period December 17, 1982 through June 23,
1983. The final margin is 27 percent. The final results of this review
were affirmed by the Court on May 26, 1993, in Krupp Stahl, A.G., et
al. v. United States, 822 F. Supp. 789 (CIT 1993). The Court's opinion
was not appealed; therefore, we are publishing the final results of the
administrative review. Attached is the notice of Final Results of
Antidumping Duty Administrative Review; Cold-Rolled Stainless Steel
Sheet from Germany, as issued on May 21, 1992.
EFFECTIVE DATE: April 5, 1994.
for further information contact: Wendy J. Frankel, Office of
Antidumping Compliance, International Trade Administration, U.S.
Department of Commerce, Washington, DC 20230; telephone: (202) 482-
0367.
This notice is in accordance with section 751(a)(1) of the Tariff
Act of 1930, as amended.
Dated: March 22, 1994.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
Cold-Rolled Stainless Steel Sheet From Germany; Final Results of
Antidumping Duty Administrative Review
AGENCY: International Trade Administration/Import Administration,
Department of Commerce.
ACTION: Final results of antidumping duty administrative review.
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SUMMARY: On November 7, 1991, the Department of Commerce published the
preliminary results of its administrative review of the antidumping
duty order on cold-rolled stainless steel sheet from the Federal
Republic of Germany (56 FR 56976). We have conducted this antidumping
duty administrative review pursuant to a remand order from the U.S.
Court of International Trade in Krupp Stahl, A.G., et al. v. United
States (Slip Op. 91-31, April 19, 1991). The review covers one
manufacturer/exporter of subject merchandise, Krupp Stahl, A.G., and
the period December 17, 1982 through June 23, 1983. Based on our
analysis of the comments received, we have not changed the preliminary
results. The final margin is listed below in the section ``Final
Results of Review.''
EFFECTIVE DATE: April 5, 1994.
FOR FURTHER INFORMATION CONTACT: Jackie Johnson or Wendy Frankel,
Office of Agreements Compliance, International Trade Administration,
U.S. Department of Commerce, Washington, DC 20230; telephone (202) 482-
3793 or -0367.
SUPPLEMENTARY INFORMATION:
Background
On November 7, 1991, the Department of Commerce (the Department)
published in the Federal Register (56 FR 56976) the preliminary results
of its administrative review of the antidumping duty order on certain
cold-rolled stainless steel sheet from Germany (48 FR 28680, June 23,
1983). In the notice of preliminary results of review, we noted that
Krupp Stahl, A.G. (Krupp), failed to respond to our questionnaire
issued in July 1991. On September 12, 1991, Krupp advised us that in
1989 it had destroyed the records for the December 1982-June 1983
review period, because German law does not require that business
records be retained beyond a minimum period of time. In addition, we
noted that after searching our files we were only able to locate the
public version of the narrative portion of Krupp's responses to the
Department's original and supplemental questionnaires issued in 1983
and 1984. Because that information was insufficient for purposes of
conducting an administrative review and because Krupp did not respond
to our questionnaire because it had destroyed all supporting
documentation, we used the best information available (BIA) for the
preliminary results of review.
Subsequent to publication of the notice of preliminary results, we
discovered a few boxes labeled with the administrative proceeding
number relevant to this case in an annex to the Department's Central
Records storeroom. We notified the parties to the proceeding of our
discovery and suspended the briefing and hearing schedule until the
Department could thoroughly review all the documents contained in those
boxes to determine which, if any, might be relevant to the instant
period of review.
The documents represented submissions from the original less than
fair value (LTFV) investigation, and from the first and second
administrative reviews. They contained information from other German
producers as well as from Krupp. There were three computer tapes in the
boxes. We were able to read two of the tapes which contained data
relevant to the LTFV investigation. The third tape could not be
formatted based on any of the formatting instructions provided in
either the LTFV or first review questionnaire and supplemental
responses, indicating that the tape did not pertain to the information
contained in those responses.
Based upon its review of all of the documents found in the Central
Records annex, the Department determined that the information either
pertained to a different company, covered an irrelevant time period, or
was not in a useable computer format for purposes of conducting a
dumping analysis. On March 2, 1991, the Department contacted counsel
for Krupp and counsel for the Petitioner to inform them of the results
of our examination of the information. At that time a revised schedule
was outlined to allow adequate time for comments and rebuttal comments.
At the request of the respondent, we held a public hearing on April 14,
1992. The Department has now completed this administrative review in
accordance with section 751 of the Tariff Act of 1930, as amended (the
Tariff Act).
Scope of the Review
Imports covered by the review are shipments of cold-rolled
stainless steel sheet whether or not corrugated or crimped and whether
or not pickled; not cut, not pressed and not stamped to non-rectangular
shape; not coated or plated with metal, and under 0.1875 inch in
thickness and over 12 inch in width. Until January 1, 1989, this
merchandise was classifiable under item number 607.9020 of the Tariff
Schedules of the United States Annotated (TSUSA). Since that date, this
merchandise is classifiable under the Harmonized Tariff Schedules (HTS)
item numbers 7219.32.00, 7219.33.00, 7219.34.00, 7219.35.00,
7219.90.00, 7220.20.10, and 7220.90.00. Like the TSUSA numbers, the HTS
numbers are provided for convenience and Customs purposes only. The
written product description remains dispositive.
This review covers the shipments of one manufacturer/exporter of
cold-rolled stainless steel sheet from the Federal Republic of Germany
to the United States, Krupp, and the period December 17, 1982 through
June 23, 1983.
Analysis of Comments Received
We invited interested parties to comment on the preliminary
results. The Department received comments and rebuttal comments from
both parties.
Comment 1: The petitioner notes that Krupp admitted that in 1989 it
destroyed all records relevant to the period of review and, therefore,
was unable to respond to the Department's questionnaire issued in July
1991. Because of Krupp's actions, the petitioner contends that Krupp
has significantly impeded the Department's conduct of this review in
that the Department now is unable to verify the accuracy and
completeness of the information submitted in Krupp's 1983 and 1984
responses to the Department's earlier questionnaires. Petitioner
asserts that destruction of relevant records during an ongoing judicial
proceeding where Krupp was aware that the Court might remand the case
to the Department for administrative review does not, contrary to
Krupp's claim, ``demonstrate [ ] a willingness'' to cooperate. Given
the circumstances, petitioner argues that the Department is obligated
to use BIA based on an adverse inference.
Department's Response: On September 12, 1991, Krupp informed the
Department that in 1989 it destroyed all data relevant to the period
under review, because German law does not require that records be
maintained for more than five years. Because of its actions, Krupp
stated that it was unable to respond to our July 1991 questionnaire. In
addition, Krupp's destruction of its records prevented the Department
from conducting a verification of what few written submissions of
factual information remain in the Department's files from Krupp's 1983
and 1984 submissions. In reviews such as this one, involving old data,
the Department may conduct a verification. See Television Receivers,
Monochrome and Color from Japan; Final Results of Antidumping Duty
Administrative Review, 54 FR 13917 (Apr. 6, 1989). In 1988 we verified
information covering the period April 1983 through August 1983
submitted by two companies subject to the Japanese television finding.
See, also, Memorandum For the File from Laurie Lucksinger and Jim
Arnold, dated May 28, 1987, regarding Large Power Transformers from
Italy--Analysis for Preliminary Results of Review for Ansaldo, where we
verified data in 1987 covering sales in 1982.
While German law may prescribe a minimum required period for the
retention of business records, it is irrelevant to the current judicial
proceeding. Respondents have a responsibility to maintain documents
relevant to ongoing litigation. See Koyo Seiko Co., Ltd. v. United
States, Slip Op. 92-72 (CIT May 15, 1992) at 19. As a consequence of
its actions, Krupp explicitly acknowledges in its September 12, 1991
letter ``that the Department will be unable to complete the
administrative review in the manner contemplated by the Court of
International Trade'' in its remand opinion and recognizes that the
Department ``will thus be forced to use the best information
available'' (BIA) for this administrative review. Therefore, pursuant
to 776(c) of the Tariff Act we have continued to use BIA for these
final results.
Comment 2: Krupp alleges that the Department suggested, and later
confirmed, through a memorandum to the file that the Department had
destroyed Krupp's proprietary questionnaire responses submitted in 1983
and 1984.
Department's Position: The Department did not destroy documents
relevant to this period of review. Prior to publication of the
preliminary results of this administrative review, we were unable to
locate documents other than written public versions of Krupp's 1983 and
1984 responses to requests for information. Subsequent to publication
of the preliminary results of review, we discovered a few boxes of
documents bearing the administrative proceeding number relevant to this
case in an annex to the Central Records storeroom. A thorough review of
the information contained in those documents revealed that it
``pertained either to a different company, an irrelevant period of
review, or was in an unusable computerized format for purposes of a
dumping analysis.'' See Memorandum to the File from Jackie Johnson,
Case Analyst, dated March 2, 1991. Other than indicating what the
Department was ultimately able to locate in its files, the memorandum
contains no statement that any of Krupp's files were destroyed, nor
does the memorandum contain any implication that this was done.
Accordingly, contrary to Krupp's allegations, the memorandum does not
support the contention that the Department destroyed any documents
whatsoever.
Comment 3: Krupp argues that the statutory language and legislative
history of sections 776(b) and (c) of the Tariff Act explicitly
prohibit the Department from using information submitted in support of
a petition as BIA in an administrative review. Krupp contends that
petition information may only be used for purposes of a final BIA
determination in an investigation.
The petitioner supports the Department's use of an adverse BIA rate
based on information from the petition arguing that the Department's
regulations not only allow the Department the discretion to determine,
on a case-by-case basis, what is the best information available, but
explicitly allow for the use of information submitted in support of a
petition as BIA. See 19 CFR 353.37.
Department's Position: We do not agree with Krupp's interpretation
that either the statute or its legislative history prohibits the
Department from using the information submitted in support of a
petition as BIA for the margin in an administrative review. While
section 776(b) of the Tariff Act indicates that the Department ``may''
use information from the petition as a basis for a final determination
in an investigation, this section contains no prohibition, explicit or
otherwise, against using such information as a basis for the final
results of an administrative review. Indeed, section 776(c) of the
Tariff Act explicitly states that, in making its ``determinations under
this [sub]title,'' the Department ``shall, whenever a party * * *
refuses or is unable to produce information requested in a timely
manner and in the form required, or otherwise significantly impedes an
investigation, use the best information otherwise available.''
This section, which governs the use of BIA for all determinations
made under Subtitle IV of the Tariff Act, places no limitations on the
use of information from the petition for purposes of making a final BIA
determination in an administrative review.
Moreover, the legislative history of the 1984 amendments to section
776 of the Tariff Act places no limitations on the Department's use of
petition information for the purposes of making BIA determinations. The
House Report confirms that ``[a]s under present law, the administering
authority will use the best information available to it for its action
if it is unable to verify the accuracy of the information submitted.''
H.R. Rep. No. 98-725, 98th Cong., 2d Sess. 43 (1984). The Conference
Report is even more clear that the permissive nature of the statutory
language does not prohibit the use of petition information for BIA
purposes in administrative review:
The express reference in the statute to the use of information
submitted in support of the petition as the best information
available for purposes of final determinations in investigations
should not be interpreted as precluding the administering authority
from using the best information available for purposes of
administrative reviews.
Conf. Rep. No. 98-1156, 98th Cong., 2d. Sess. 177 (1984). As is
evident from the legislative history as well, in giving the Department
permissive use to employ petition information for BIA purposes in a
final determination in an investigation, Congress was careful not to
place any prohibitions on the use of BIA information for purposes of
administrative reviews, including the use of information submitted in
support of a petition.
Under Krupp's forced interpretation of the statutory language, the
Department could not even use petition information as a basis for a
preliminary BIA determination in an investigation. Such interpretation
would render the Department powerless to secure the cooperation
required to conduct investigations and administrative reviews. However,
the Court, in Krupp Stahl A.G. v. United States, 553 F. Supp. 394 (CIT
1982) (Krupp I), has already shown such an interpretation to be invalid
as it denied Krupp's motion for a preliminary injunction to enjoin the
Department from using petition information to make a preliminary BIA
determination in the underlying investigation of this case.
In addition, the Court, in Rhone Poulenc, Inc. v. United States,
899 F.2d 1185 (Fed. Cir. 1990), stated that the Department's BIA
presumption ``implements the basic purpose of the statute'' and
``effectively induces [respondents] to comply with agency
questionnaires; an important practical consideration since the ITA has
no subpoena power.'' Id. at 1191. As such, the BIA rule can be viewed
as ```an investigative tool, which [the] agency may weld as an informal
club over recalcitrant parties * * * whose failure to cooperate may
work against their best interest.''' Id., citing Atlantic Sugar, Ltd.
v. United States, 744 F.2d 1556, 1560 (Fed. Cir. 1984).
Accordingly, based on the plain language of the statute, a clear
reading of the legislative history, and mindful of relevant Court
opinions on the application of the BIA provision of the statute, the
Department must reject Krupp's interpretation as contrary to all three.
We conclude, therefore, that there is no legal basis which would
prevent the Department from using petition information for purposes of
the final results of the administrative review in question.
Comment 4: Krupp also claims that the Department's use of
information submitted in support of the petition as BIA for this
administrative review is an unprecedented departure from Department
practice. Krupp contends that the Department has clearly and repeatedly
stated that its policy is to use as BIA the higher of the highest rate
for any firm: in the current review; a previous review; or the final
LTFV determination.
Krupp notes that in Replacement Parts for Self-Propelled Bituminous
Paving Equipment From Canada; Final Results of Antidumping Duty
Administrative Review, 56 FR 47451 (September 19, 1991) (Canadian
Paving Equipment), the Department discussed that in the preliminary
results of review that it had the authority to consider petition
information as BIA. However, the Department rejected the petition
information for purposes of BIA in the final results of review, despite
the respondent's repeated failure to respond to the Department's
requests for information. Citing industrial Belts and Components and
Parts Thereof, Whether Cured or Uncured, From the Federal Republic of
Germany; Preliminary Results of Antidumping Duty Administrative Review,
56 FR 2500 (January 23, 1991) (German Belts), Krupp contends that the
Department's statement that it preliminarily used a rate from the
petition as BIA is misleading, because the rate used is actually the
margin from the final determination of the fair value investigation.
Department's Position: As we stated in Canadian Paving Parts,
``because each investigation and administrative review present the
Department with a unique set of facts and circumstances, the Department
often must select an appropriate unique BIA rate to achieve the
purpose'' of the statute. Id. at 47453. See also Final Results of
Antidumping Duty Administrative Review; Steel Jacks from Canada, 52 FR
32957 (Sept. 1, 1987) (``Selection of the best information is made on a
case-by-case basis.'').
In Canadian Paving Parts we selected a less adverse BIA for the
final results of review rather than a higher rate based on information
submitted in support of the petition because the respondent had made
several attempts to cooperate with our requests. However, the only
reason the Department decided not to use the petition-based rate for
the final results of the review was because the respondent made some
attempt to cooperate, not because the Department determined it was
legally precluded from doing so.
Contrary to Krupp's assertions, the Department has used petition-
based rates as BIA in numerous administrative reviews. For example, in
the administrative review of Antifriction Bearings (Other Than Tapered
Roller Bearings) and Parts Thereof from Germany, 56 FR 31692 (July 11,
1991) (AFBs), we applied the most adverse BIA to companies who refused
to respond to the Department's questionnaire or otherwise significantly
impeded the conduct of the administrative review. While the notice of
final results indicated that the rate used as BIA was the highest rate
from the final determination of sales at LTFV, the final LTFV
determination notice clearly stated that the information used as BIA
for that determination had been submitted in support of the petition.
Also, in Cellular Mobile Telephones and Subassemblies from Japan; Final
Results of Antidumping Duty Administrative Review, 54 FR 48011 (Nov.
20, 1989) (CMTs), and in Industrial Belts and Components and Parts
Thereof, Whether Cured or Uncured, From the Federal Republic of
Germany; Final Results of Antidumping Duty Administrative Review, 56 FR
9673 (Mar. 7, 1991) (German Belts), we used, as BIA, margins from the
final LTFV determinations, which were based on information submitted in
support of the original petitions. See CMTs final LTFV determination,
50 FR 45447 (Oct. 31, 1985), and German Belts final LTFV determination,
54 FR 15505 (Apr. 18, 1989), respectively.
Comment 5: Citing Rhone Poulenc, where the Court found that it is
an acceptable interpretation of the best information statute that the
Department can presume that the highest prior margin is the most
probative of current margins in BIA situations, Krupp asserts that the
Department may only consider prior margins for purposes of BIA. Krupp
argues that, because the petition-based BIA preliminary determination
rate was superseded by a final calculated determination rate in the
LTVF investigation, the preliminary LTFV rate ``is not a prior margin''
and thus may not be used as BIA for the final results of this
administrative review.
In addition, Krupp argues that the Department itself declared the
rates established in this preliminary determination ``no longer in
effect,'' in the Final Determination of Sales at Less Than Fair Value;
Certain Stainless Steel Sheet and Strip Products from the Federal
Republic of Germany, 48 FR 20459 (May 6, 1983). Krupp goes on to argue
that the Court in Krupp I would have found Krupp's challenge to the
Department's petition-based preliminary BIA margin to be ripe for
review if the Court thought that the preliminary determination ``could
determine the final liquidation rate for Krupp's entries,
notwithstanding a final determination.''
The Petitioner states that application of the 27 percent rate in
this case represents a reasonable exercise of the Department's
discretion to determine, on a case-by-case basis, what is the best
information available. The Petitioner argues that 19 CFR 353.37(b)
provides for the use of petition information as BIA. The Petitioner
further contends that, as discussed in Rhone Poulenc, the statute
provides for the Department to presume that the highest prior margin is
the most probative when a company is non-responsive to the Department's
requests for information, otherwise, the respondent would have provided
current information demonstrating that the current margin is less. The
Petitioner argues that such a presumption must exist here since the
respondent failed to comply with the Department's request for
information and in fact destroyed all the records pertaining to the
instant period of review.
Department's Position: We disagree with Krupp's contentions that,
in an LTFV investigation, a preliminary determination rate based upon
the best information available--in this instance from information
submitted in support of the petition--is not a legitimate margin and,
thus, cannot be a ``prior margin'' which may serve as the basis for a
final rate in an administrative review. To the contrary, an affirmative
preliminary BIA rate, even if based on information submitted in support
of the petition, results in the suspension of liquidation and the
collection of cash deposits or bond. See section 733(d)(2) of the
Tariff Act. In addition, in Daewoo Electronics Co., v. United States,
712 F. Supp. 931 (CIT 1989), the Court upheld the Department's
determination that an LTFV preliminary margin serves as a provisional
measures rate cap, with respect to merchandise entered between the
dates of the preliminary and final determinations. See section 737(a)
of the Tariff Act. In fact, because of the importance of the
preliminary margin, the Department has promulgated regulations
providing for the correction of clerical errors in preliminary
determinations of sales at LTFV. See 57 FR 1131 (Jan. 10, 1992).
Thus, a preliminary margin, whether it is a calculated rate or is a
petition-based BIA rate, has legal force and effect. As such, it serves
as a ``prior margin'' to the same extent as a final margin. In this
respect, Krupp's reliance on Rhone Poulenc is misplaced. While the
Federal Circuit did state that ``it reflects a common sense inference
that the highest prior margin is the most probative evidence of the
current margins,'' 899 F.2. at 1190, it placed absolutely no
qualifications on what constituted the ``highest prior margin.'' The
Court went on the explain that if this common sense inference were not
so, ``the [respondent], knowing of the rule, would have produced
current information showing the margin to be less.'' Id (emphasis in
original).
Notwithstanding its interpretation of the statutory language and
legislative history, even Krupp admits that information submitted in
support of the petition can be used as a BIA rate for an administrative
review. See Public Hearing Transcript (Apr. 14, 1992) (Transcript) at
42-43. Krupp, however, attempts to qualify the use of such information
by arguing that the petition-based BIA rate must also be the final
determination rate of the LTFV investigation. In other words, if the
preliminary determination is a BIA rate based on information from the
petition but is ``carried forward'' to the final determination, then it
becomes a ``prior margin.'' Transcript at 43. Once this has occurred,
then according to Krupp, the petition-based BIA rate may serve as the
basis for a BIA rate in an administrative review. Id. Such reasoning,
however, is based on the faulty premise that a preliminary margin is
not a ``real'' margin, and thus cannot be a ``prior margin.'' However,
as explained above, a preliminary margin is an actual margin to which
legal consequences attach and, thus, is as much a ``prior margin'' as
the rate for the final determination. Thus, Krupp's ``carried forward''
theory must be rejected as being without legal foundation.
Further, contrary to Krupp's contentions, the final LTFV
determination margin is no more representative of the period under
review than is the preliminary margin. Both of these margins are based
upon information which relates to a period prior to the period of
review. Indeed, in this instance because Krupp failed to respond to the
Department's information request, it has not demonstrated that the
final determination rate is any more probative of the period under
review than the preliminary rate. See Rhone Poulenc, 899 F. Supp. at
1190. As such, there is no record evidence to show that one is more or
less probative than the other as to what the actual dumping margins
would be for the period of review. This then is the reason for
undertaking an administrative review, i.e., to analyze information
concerning the actual entries for the review period so that any duties
that might be assessed on those entries would have been based on the
actual data relating to those entries.
However, when the administrative review process is thwarted, as it
has been in this case by Krupp's failure to provide information about
the entries subject to review, then the Department is forced to rely
upon the best information available. Under these circumstances the
court has clearly ruled that ``Commerce may exercise discretion in
determining what is the best information available when a [respondent]
has failed to supply requested information.'' Tai Yang Metal Industrial
Co., v. United States, 712 F. Supp. 973, 977 (CIT 1989), citing
Chemical Products Corp., v. United States, 645 F. Supp. 289, 295 (CIT
1986). Further, when the respondent fails to provide the requested
information, the use of BIA ``can be detrimental to [respondent's]
interests.'' Daewoo, 712, F. Supp. at 944. Thus, because of Krupp's
failure to comply with the Department's information request, it should
not find itself in a better position as a result of noncompliance than
it would had it provided the Department with complete, accurate, and
timely data. See Canadian Paving Parts, 56 FR at 47453. ``Otherwise,
alleged unfair traders would be able to control the amount of
antidumping duties by selectively providing the ITA with information.''
Olympic Adhesives, Inc., v. United States, 899 F. 2d 1565, 1572 (CIT
1990). Accord, Pistachio Group of Ass'n of Food Industries v. United
States, 671 F. Supp. 31, 40 (CIT 1987).
Krupp's speculations as to what the Court might have done in Krupp
I had it been able to divine the particular circumstance of this review
are also misplaced. In fact, there is nothing in the Court's opinion
even to suggest that it would have considered Krupp's challenge to the
preliminary determination ripe for review if it had known that margin
would be used as a BIA margin in the first administrative review
because of Krupp's failure to comply with the Department's information
request. To the contrary, after reviewing the facts surrounding the
preliminary determination, the Court found that ``the deposit of
estimated duties will not cause a hardship of the type which justifies
judicial intrusion into an ongoing administrative investigation.''
Krupp I, 553 F. Supp. at 396. Indeed, the Court saw the deposit of
estimated duties as being ``the normal consequences of involvement in
these investigations.'' Id.
The reason the Court found no hardship to Krupp is that the
preliminary margin is simply an estimate of the potential duties owed--
it does not represent an assessment rate for purposes of liquidation.
Under the statutory scheme, all of Krupp's entries subsequent to the
date of the preliminary LTFV determination would only be liquidated at
a rate determined on the basis of an administrative review of those
entries. If that assessment rate were determined to be higher than the
preliminary LTFV rate, Krupp would not be required to pay the
difference. Id. Thus, any so-called ``hardship'' that purportedly has
befallen Krupp is of its own making by virtue of its failure to comply
with the Department's information request, thereby resulting in the
assigning of an adverse BIA rate for the entries subject to review.
Comment 6: The Petitioner recites the history of this litigation
highlighting that, in its Motion for Summary Judgment, Krupp asked the
Court, among other alternative prayers for relief, to enjoin
liquidation of the December 1982 through May 1983 entries while
directing the Department to conduct an administrative review of those
entries.
Because the Court did not grant Krupp's request for a 7.76 percent
liquidation rate, but rather instructed the Department to conduct an
administrative review, the Petitioner asserts that Krupp's actions have
simply been an attempt to manipulate the outcome of the administrative
review process. The Petitioner concludes that if the Department were to
apply the 7.76 percent rate as BIA in these final results, the
respondent would in effect be rewarded for its lack of cooperation.
Department's Position: Because Krupp failed to respond to our most
recent questionnaire and destroyed its business documents, thus
precluding conduct of an administrative review and verification of the
written information already on the record, we agree with the Petitioner
that use of a less adverse rate as BIA in the instant review would be
inappropriate. In Anhydrous Sodium Metasilicate From France; Final
Results of Antidumping Duty Administrative Review, 53 FR 4195 (February
12, 1988), we stated that to use the information that the respondent
suggests as BIA ``would, in effect, reward the respondent for this
failure to provide an adequate response'' in the review.
Final Results of Review
Based on the Department's analysis of the comments received, the
final results of our review are unchanged from the preliminary results.
We determined that a 27 percent margin exists for Krupp.
The Department will instruct the U.S. Customs Service to assess
antidumping duties on all entries of this merchandise made by Krupp
during the period December 17, 1982 through June 23, 1983. The
Department will issue appraisement instructions directly to the Customs
Service.
On August 11, 1986, the Department published in the Federal
Register (51 FR 28739) a notice of revocation of the antidumping duty
order, effective March 1, 1986. This administrative review covering the
period December 17, 1982 through June 23, 1983, does not affect the
revocation of the antidumping duty order. Therefore, we will instruct
the Customs Service to continue to liquidate all entries of this
merchandise exported on or after March 1, 1986, without regard to
antidumping duties.
This administrative review and notice are in accordance with
section 751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR
353.22.
Dated: May 21, 1992.
Francis J. Sailer,
Acting Assistant Secretary for Import Administration.
[FR Doc. 94-8024 Filed 4-4-94; 8:45 am]
BILLING CODE 3510-DS-M
