[Federal Register Volume 62, Number 94 (Thursday, May 15, 1997)]
[Notices]
[Pages 26776-26778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12800]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-583-815]
Certain Welded Stainless Steel Pipe From Taiwan; Preliminary
Results of Antidumping Duty Administrative Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary results of administrative reviews.
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SUMMARY: In response to requests by respondent Ta Chen Stainless Pipe
Co., Ltd. (Ta Chen), the Department of Commerce (the Department) is
conducting administrative reviews of the antidumping duty order on
certain welded stainless steel pipe from Taiwan (A-583-815). These
reviews cover one manufacturer/exporter of the subject merchandise to
the United States during the periods June 22, 1992 through November 30,
1993 and December 1, 1993 through November 30, 1994.
We preliminarily determine that Ta Chen made sales of welded
stainless steel pipe (WSSP) below the foreign market value (FMV) for
both periods of review (POR). If these preliminary results are adopted
in our final results of administrative review, we will instruct the
U.S. Customs Service to assess antidumping duties equal to the
difference between United States price (USP) and the FMV.
We invite interested parties to comment on these preliminary
results. Parties who submit comments are requested to submit with the
argument (1) a statement of the issues and (2) a brief summary of the
argument.
EFFECTIVE DATE: May 15, 1997.
FOR FURTHER INFORMATION CONTACT: Robert James at (202) 482-5222 or John
Kugelman at (202) 483-0649, Antidumping and Countervailing Duty
Enforcement Group III, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230.
APPLICABLE STATUTE AND REGULATIONS: Unless otherwise indicated, all
citations to the Tariff Act of 1930, as amended (the Tariff Act) and to
the Department's regulations are in reference to the provisions as they
existed on December 31, 1994.
SUPPLEMENTARY INFORMATION:
Background
On December 30, 1992, the Department published in the Federal
Register the antidumping duty order on WSSP from Taiwan (57 FR 62300).
On November 26, 1993, the Department published the notice of
``Opportunity to Request Administrative Review'' for the period June
22, 1992 through November 30, 1993 (58 FR 62326). In accordance with 19
CFR 353.22(a)(1), Ta Chen requested that we conduct a review of its
sales for this period. On January 18, 1994, we published in the Federal
Register a notice of initiation of an antidumping duty administrative
review covering the period June 22, 1992 through November 30, 1993. The
Department subsequently published a notice of ``Opportunity to Request
Administrative Review'' for the period December 1, 1993 through
November 30, 1994 on December 6, 1994 (59 FR 62710). Again, Ta Chen
requested a
[[Page 26777]]
review of its sales for this period. On January 13, 1995, we published
in the Federal Register our notice of initiation of the second
administrative review (60 FR 3192). The Department is now conducting
these administrative reviews in accordance with section 751 of the
Tariff Act.
Scope of the Review
The merchandise subject to this administrative review is certain
welded austenitic stainless steel pipe (WSSP) that meets the standards
and specifications set forth by the American Society for Testing and
Materials (ASTM) for the welded form of chromium-nickel pipe designated
ASTM A-312. The merchandise covered by the scope of the order also
includes austenitic welded stainless steel pipes made according to the
standards of other nations which are comparable to ASTM A-312.
WSSP is produced by forming stainless steel flat-rolled products
into tubular configuration and welding along the seam. WSSP is a
commodity product generally used as a conduit to transmit liquids or
gases. Major applications of WSSP include, but are not limited to,
digester lines, blow lines, pharmaceutical lines, petrochemical stock
lines, brewery process and transport lines, general food processing
lines, automotive paint lines, and paper process machines.
Imports of WSSP are currently classifiable under the following
Harmonized Tariff Schedule of the United States (HTS) subheadings:
7306.40.1000, 7306.40.5005, 7306.40.5015, 7306.40.5145, 7306.40.5060,
and 7306.40.5075. Although these subheadings include both pipes and
tubes, the scope of this investigation is limited to welded austenitic
stainless steel pipes. The HTS subheadings are provided for convenience
and Customs purposes; the written description of the scope of this
order remains dispositive.
Use of Best Information Available
We preliminarily determine that the use of best information
otherwise available (BIA), in accordance with section 776(c) of the
Tariff Act, is appropriate for Ta Chen for the period June 22, 1992
through November 30, 1993 and the period December 1, 1993 through
November 30, 1994. We find that in each review Ta Chen mischaracterized
and failed to fully disclose its relationships with certain U.S.
customers and, as a result, did not report its first U.S. sale to an
unrelated party. Therefore, Ta Chen failed to provide the Department
with the U.S. sales data necessary to calculate margins in these two
reviews. Although the bases for this determination are discussed below,
much of the relevant information is proprietary in nature and cannot be
discussed in this public notice. A more detailed analysis is found in
the Department's proprietary Analysis Memorandum, on file in Room B-099
of the Main Commerce Building.
The Department's definition of related parties is found at section
771(13) of the Tariff Act. Section 771(13) states, inter alia, that:
for purposes of determining United States price, the term
``exporter'' includes the person by whom or for whose account the
merchandise is imported into the United States if--
* * * * *
(B) Such person owns or controls, directly or indirectly,
through stock ownership or control or otherwise, any interest in the
business of the exporter, manufacturer, or producer;
(C) The exporter, manufacturer, or producer owns or controls,
directly or indirectly, through stock ownership or control or
otherwise, any interest in the business conducted by such person * *
*
See Section 771(13) of the Tariff Act (emphasis added).
Throughout the first and second administrative reviews Ta Chen
insisted that it was not related to any U.S. customer. However, in a
supplemental questionnaire response submitted in the third (1994-1995)
administrative review (relevant portions of which have been
incorporated into the records of these reviews), Ta Chen for the first
time disclosed information which clearly indicates that Ta Chen was
related to two U.S. customers, within the meaning of section 771(13) of
the Tariff Act, during the first and second review periods. Section
771(13)(C) holds that the term ``exporter'' includes the person by whom
or for whose account the merchandise is imported into the United States
if the exporter ``controls, directly or indirectly, through stock
ownership or control or otherwise, any interest in the business
conducted by such person.'' The record evidence leads us to conclude
that Ta Chen exercised de facto operational control over these U.S.
customers.
Our discussion below focuses on two parties, referred to here as
Company A and Company B, which Ta Chen reported as unrelated customers.
Prior to June, 1992 Ta Chen had sold pipe from the U.S. inventory of
its wholly-owned subsidiary, Ta Chen International (TCI). In June 1992,
after Ta Chen decided to stop selling its products from TCI's
inventory, TCI and Company A (a U.S. company established in 1988 by the
president of a Taiwanese firm), signed an agreement whereby Company A
would purchase all of TCI's considerable U.S. inventory and would
effectively replace TCI as the principal distributor of Ta Chen pipe
products in the United States. In a separate June 1992 agreement
between Ta Chen and Company A, Company A also committed itself to
purchasing very substantial, and rapidly increasing, dollar values of
Ta Chen products over the following two years. In September 1993, a
member of Ta Chen's board of directors sold all of his stock in Ta
Chen, allegedly severed all ties with Ta Chen, and incorporated a new
entity, Company B. This new Company B purchased all of Company A's
assets, including inventory, and assumed all of Company A's obligations
regarding its lease of space from Ta Chen's president, purchase
commitments, credit arrangements, etc.
During the first (1992-1993) and second (1993-1994) periods of
review Ta Chen controlled both Company A's and then Company B's
disbursements through physical custody of their signature stamps,
whereby officials of TCI were authorized to execute checks and other
instruments on behalf of Company A and Company B. Ta Chen also shared
common sales department personnel and office equipment with Company A
and Company B. Furthermore, Ta Chen's sales manager also served as
sales manager for both Company A and Company B. Ta Chen also had full
and unrestricted access, via a dedicated telephone connection, to
Company A's and Company B's computer accounting systems, including
their accounts receivable, accounts payable, payroll, and other company
books. Ta Chen indicated that it was the sole supplier of stainless
steel pipe and pipe fittings to Company A and Company B and, further,
that its president participated directly in negotiating the terms of
certain sales Company A and Company B made to subsequent purchasers of
WSSP in the United States. Finally, first Company A and, later, Company
B, pledged their accounts receivable and inventory as security for a
sizable line of credit obtained from a local bank by TCI. These
companies also pledged their full cooperation in enforcing this lien in
the event Ta Chen defaulted on its debt.
In addition, we note that for the first period of review, record
evidence strongly indicates that Ta Chen and Company B were related
parties as defined by section 771(13)(B) of the Tariff Act. At least
for some portion of 1992 until the end of September 1993 (i.e., during
the first POR), Ta Chen's
[[Page 26778]]
board member simultaneously owned Company B and held equity interest in
Ta Chen. Petitioners have supplied a Dun & Bradstreet report on Company
B and a supporting affidavit which indicates that while Company B was
incorporated in 1993, the board member actually founded the company and
made sales in 1992.
Based on this evidence of Ta Chen's connections with Company A and
Company B, in particular its control over operational functions such as
disbursements, sales personnel, and Ta Chen's involvement in Company
A's and Company B's sales activities, we preliminarily determine that
Ta Chen had a substantial interest in Company A and Company B during
the 1992-1993 and 1993-1994 periods of review. Therefore, Ta Chen was
related to Company A and Company B within the meaning of section
771(13) of the Tariff Act. Because Ta Chen reported U.S. sales to
Company A and Company B instead of the first sale to an unrelated
party, the use of best information otherwise available is warranted.
In selecting BIA, the Department has established a ``two-tier''
hierarchy:
1. When a company refuses to cooperate with the Department or
otherwise significantly impedes the proceedings we use as BIA the
higher of (a) the highest of the rates found for any firm for the same
class or kind of merchandise in the same country of origin in the LTFV
investigation or a prior administrative review, or (b) the highest rate
found in this review for any firm for the same class or kind of
merchandise in the same country of origin.
2. When a company substantially cooperated with our requests for
information, but failed to provide the information in a timely manner
or in the form required, we use as BIA the higher of (a) the highest
rate (including the ``all others'' rate) ever applicable to the firm
for the same class or kind of merchandise from either the LTFV
investigation or a prior administrative review, or (b) the highest rate
calculated in this review for any firm for the class or kind of
merchandise in the same country of origin. See Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof From France, et
al.; Final Results of Antidumping Duty Administrative Reviews 57 FR
28360, 28379 (June 24, 1992); see also Allied Signal v. United States,
996 F.2d 1195 (Fed. Cir. 1993).
We find that because Ta Chen failed to provide accurate information
on its relationships to other companies and misreported its sales in
both the first and second administrative reviews, Ta Chen failed to
cooperate with the Department and has significantly impeded these
proceedings. Accordingly, we are assigning Ta Chen a margin based on
``first-tier,'' or uncooperative, BIA.
Preliminary Results of Review
As a result of our review, we preliminarily determine the weighted-
average margin for Ta Chen for the periods June 22, 1992 through
November 30, 1993 and December 1, 1993 through November 30, 1993 to be
31.90 percent, i.e., the highest margin found for any respondent in the
LTFV investigation. See Amended Final Determination and Antidumping
Duty Order; Certain Welded Stainless Steel Pipe From Taiwan, 57 FR
62300, 62301 (December 30, 1992).
Parties to these proceedings may request disclosure within five
days of publication of this notice and may request a hearing within ten
days of publication. Any hearing, if requested, will be held 44 days
after the date of publication, or the first business day thereafter.
Interested parties may submit case briefs or written comments, or both,
no later than 30 days after the date of publication. Rebuttal briefs
and rebuttals to written comments, limited to issues raised in the case
briefs and comments, may be submitted no later than 37 days after the
date of publication of this notice. Parties who submit arguments in
these proceedings are requested to submit with the argument (1) a
statement of the issues and (2) a brief summary of the argument. The
Department will issue final results of these administrative reviews,
including the results of our analysis of the issues in any such written
comments or at a hearing.
The Department shall determine, and the U.S. Customs Service shall
assess, antidumping duties on all appropriate entries. Individual
differences between U.S. price and FMV may vary from the percentage
stated above. The Department will issue appraisement instructions
directly to the Customs Service.
Furthermore, the following deposit requirements will be effective
upon completion of the final results of these administrative reviews
for all shipments of WSSP from Taiwan entered, or withdrawn from
warehouse, for consumption on or after the publication of the final
results of these administrative reviews, as provided in section
751(a)(1) of the Tariff Act:
(1) The cash deposit rate for Ta Chen will be the rate established
in the final results of these administrative reviews;
(2) For previously reviewed or investigated companies other than Ta
Chen, 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 these reviews, or the
LTFV investigation, but the manufacturer 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 these or any other review conducted by the Department, the cash
deposit rate will be 19.84 percent. See Amended Final Determination and
Antidumping Duty Order; Certain Welded Stainless Steel Pipe From
Taiwan, 57 FR 62300 (December 30, 1992).
This notice serves as a preliminary reminder to importers of their
responsibility to file a certificate regarding the reimbursement of
antidumping duties prior to liquidation of the relevant entries during
each 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. These administrative reviews and this 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 8, 1997.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 97-12800 Filed 5-14-97; 8:45 am]
BILLING CODE 3510-DS-P
