[Federal Register Volume 64, Number 172 (Tuesday, September 7, 1999)]
[Notices]
[Pages 48587-48589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23214]
[[Page 48587]]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-122-047]
Elemental Sulphur From Canada; Preliminary Results of Antidumping
Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Preliminary Results and Partial Rescission of
Antidumping Duty Administrative Review of Elemental Sulphur from
Canada.
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SUMMARY: This administrative review covers Husky Oil, Ltd. (``Husky'')
and Petrosul International (``Petrosul''). The period of review
(``POR'') is December 1, 1997, through November 30, 1998.
For the reasons provided in the ``Facts Available'' section of this
notice, we have preliminarily determined Husky's antidumping rate based
on total adverse facts available, and have applied the highest rate
calculated for Husky in prior reviews. 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 based on this
margin.
On March 10, 1999, Petrosul informed the Department of Commerce
(``the Department'') that it did not have any shipments of subject
merchandise to the United States during the POR. We have confirmed this
with information from the U.S. Customs Service. Therefore, in
accordance with section 351.213(d)(3) of the Department's regulations
and consistent with the Department's practice, we are rescinding our
review for Petrosul. For further information, see the ``Partial
Rescission of Review'' section of this notice, below.
Interested parties are invited to comment on these preliminary
results. Parties who submit arguments in this proceeding are requested
to submit with the argument: (1) a statement of the issue; and (2) a
brief summary of the argument.
EFFECTIVE DATE: September 7, 1999.
FOR FURTHER INFORMATION CONTACT: Brandon Farlander or Rick Johnson,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th and Constitution Avenue, NW., Washington,
DC 20230; telephone: (202) 482-0182 or (202) 482-3818, respectively.
Applicable Statute and Regulations
Unless otherwise indicated, all citations to the statute are
references to the provisions effective January 1, 1995, the effective
date of the amendments made to the Tariff Act of 1930 (``the Act'') by
the Uruguay Rounds Agreements Act (``URAA''). In addition, unless
otherwise indicated, all citations to the Department's regulations are
to the regulations codified at 19 CFR Part 351 (1998).
Background
On December 8, 1998, the Department published in the Federal
Register a notice of ``Opportunity to Request Administrative Review''
of the antidumping duty order on elemental sulphur from Canada (63 FR
67646). In accordance with 19 CFR 351.213(b)(1), on December 31, 1998,
the petitioner, Freeport-McMoRan Sulphur, Inc. (``Freeport''),
requested an administrative review of the antidumping order covering
the period December 1, 1997, through November 30, 1998, for Husky and
Petrosul. On January 25, 1999, the Department published in the Federal
Register a notice of initiation of administrative review of this order
(64 FR 3682). On February 5, 1999, Husky requested that the Department
rescind the review and revoke, in whole or in part, the above
antidumping order based on changed circumstances. On March 22, 1999,
the Department denied Husky's request for a changed circumstances
review. See Decision Memorandum: Request of Husky Oil, Ltd. to Initiate
A Changed Circumstances Review of the Antidumping Duty Order on
Elemental Sulphur from Canada, March 22, 1999. On April 19, 1999, Husky
submitted a letter to the Department stating that it would not further
respond to the Department's questionnaire (a partial response to the
Department's questionnaire had been submitted on March 16, 1999),
because ``it (could not) justify the time and considerable costs
necessitated by full participation in this review.''
Scope of the Review
Imports covered by this review are shipments of elemental sulphur
from Canada. This merchandise is classifiable under Harmonized Tariff
Schedule (``HTS'') subheadings 2503.10.00, 2503.90.00, and 2802.00.00.
Although the HTS subheadings are provided for convenience and for U.S.
Customs purposes, the written description of the scope of this finding
remains dispositive.
Partial Rescission of Review
As noted above, on March 10, 1999, Petrosul informed the Department
that it had no shipments of subject merchandise to the United States
during the POR. We have confirmed this with information received from
the U.S. Customs Service. Therefore, in accordance with 19 CFR
351.213(d)(3) and consistent with the Department's practice, we are
rescinding our review with respect to Petrosul (see e.g., Certain
Welded Carbon Steel Pipe and Tube from Turkey; Final Results and
Partial Rescission of Antidumping Administrative Review, 63 FR 35190,
35191 (June 29, 1998)).
Facts Available
In accordance with section 776(a)(2)(A) of the Act, we
preliminarily determine that the use of facts available is appropriate
as the basis for Husky's dumping margin. Section 776(a)(2) of the Act
provides that if an interested party: (A) withholds information that
has been requested by the Department; (B) fails to provide such
information in a timely manner or in the form or manner requested,
subject to subsections 782 (c)(1) and (e) of the Act; (C) significantly
impedes a determination under the antidumping statute; or (D) provides
such information but the information cannot be verified, the Department
shall, subject to subsection 782(d) of the Act, use facts otherwise
available in reaching the applicable determination. In this case,
section 776(a)(2)(A) of the Act applies because Husky failed to respond
to sections B, C, and D of the Department's February 16, 1999
questionnaire.
Because Husky failed to respond to significant sections of the
Department's questionnaire (i.e., including submissions relating to
home market sales, U.S. sales, and cost of production information), and
indicated that it would not continue to participate fully in this
administrative review, we preliminarily determine that, in accordance
with sections 776(a) and 782(e) of the Act, the use of total facts
available is appropriate. See, e.g., Certain Grain-Oriented Electrical
Steel from Italy: Final Results of Antidumping Duty Administrative
Review, 62 FR 2655 (January 17, 1997).
Section 776(b) of the Act provides that adverse inferences may be
used with respect to a party that has failed to cooperate by not acting
to the best of its ability to comply with requests for information. See
Statement of Administrative Action (``SAA'') accompanying the URAA,
H.R. Rep. No. 103-316, at 870. Husky's failure to participate in this
review demonstrates that it has failed to act to the best of its
ability and, therefore, an adverse inference is warranted. See, e.g.,
Extruded Rubber Thread from Malaysia; Final Results of Antidumping Duty
[[Page 48588]]
Administrative Review, 63 FR 12752 (March 16, 1998).
Section 776(b) of the Act authorizes the Department to use as
adverse facts available secondary information, that is, information
derived from the petition, the final determination, a previous
administrative review, or any other information placed on the record.
The SAA further provides that ``{i}n employing adverse inferences, one
factor the {Department} will consider is the extent to which a party
may benefit from its own lack of cooperation.'' SAA at 870. It is the
Department's normal practice, in situations involving non-cooperating
respondents such as Husky, to select as adverse facts available the
highest margin from the current or any prior segment of the same
proceeding. Therefore, as total adverse facts available, we have
applied the rate of 40.38 percent, which was Husky's calculated final
margin in the 1992/93 administrative review. See Final Elemental
Sulphur from Canada; Final Results of Antidumping Duty Administrative
Reviews 62 FR 37970, 37990 (July 15, 1997). The Department previously
applied this rate as a total adverse facts available rate for Mobil Oil
Canada, Ltd. in the 1994/95 administrative review. See Elemental
Sulphur from Canada: Final Results of Antidumping Duty Administrative
Review, 62 FR 37958, 37969 (July 15, 1997).
Section 776(c) of the Act provides that the Department shall, to
the extent practicable, corroborate secondary information by reviewing
independent sources reasonably at its disposal. The SAA provides that
``corroborate'' means that the Department will satisfy itself that the
secondary information to be used has probative value, that is, that it
is both reliable and relevant. See SAA at 870. The 40.38 percent rate
we selected meets these corroboration criteria.
Regarding the reliability of the selected rate, because there are
no independent sources for calculated dumping margins, unlike other
types of information, such as input costs or selling expenses, the only
source for margins is administrative determinations. Thus, in an
administrative review, if the Department chooses as total adverse facts
available a calculated dumping margin from a prior segment of the
proceeding, it is not necessary to question the reliability of that
earlier calculated margin. See, e.g., Elemental Sulphur from Canada:
Preliminary Results of Antidumping Duty Administrative Review, 62 FR
971 (January 7, 1997); Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof from France, et al.: Final Results of
Administrative Review, 62 FR 2081, 2088 (January 15, 1997); and Final
Results of Antidumping Duty Administrative Review: Brass Sheet and
Strip from Germany, 64 FR 43342, 43343 (August 10, 1999). Thus, because
we have selected Husky's own calculated margin from a prior
administrative review, we do not need to question its reliability.
With respect to the relevance aspect of corroboration, however, the
Department will consider information reasonably at its disposal as to
whether there are circumstances that would render a margin
inappropriate. Where circumstances indicate that the selected margin is
not appropriate as adverse facts available, the Department will
disregard the margin and determine an appropriate margin. See, e.g.,
Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty
Administrative Review, 61 FR 6812, 6814 (February 22, 1996) (where the
Department disregarded the highest margin for use as adverse facts
available because the margin was based on another company's
uncharacteristic business expense, resulting in an unusually high
margin). In this review, the rate selected stems from Husky itself, and
we are not aware of any circumstances that would render this rate
inappropriate.
Preliminary Results of Review
As a result of our review, we preliminarily determine that the
following margin exists for the period December 1, 1997, through
November 30, 1998:
------------------------------------------------------------------------
Margin
Manufacturer/Exporter (percent)
------------------------------------------------------------------------
Husky Oil, Ltd 40.38
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Any interested party may request a hearing within 30 days of
publication of this notice in the Federal Register. Case briefs from
interested parties may be submitted not later than 30 days after the
date of publication of this notice in the Federal Register; rebuttal
briefs may be submitted not later than five days thereafter. Any
hearing, if requested, will be held 2 days after the scheduled date for
submission of rebuttal briefs. Issues raised in the hearing will be
limited to those raised in the case briefs. The Department will publish
the final results of this administrative review, including its analysis
of issues raised in any written comments or at a hearing, not later
than 120 days after the date of publication of this notice.
Assessment Rate
In the event these preliminary results are made final, we intend to
assess antidumping duties on Husky's entries at the same rate as the
dumping margin (i.e., 40.38 percent) since the margin is not a current
calculated rate for the respondent, but a rate based upon total facts
available pursuant to section 776(a) of the Act.
Cash Deposit
Furthermore, the following deposit requirements will be effective
for all shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of the
final results of these administrative reviews, as provided by section
751(a)(1) of the Act: (1) the cash deposit rate for Husky will be the
rate established in the final results of this administrative review (no
deposit will be required for a zero or de minimis margin, i.e., a
margin lower than 0.5 percent); (2) for merchandise exported by
manufacturers or exporters not covered in this review but covered in a
previous segment of this proceeding, the cash deposit rate will
continue to be the company-specific rate published for the most recent
segment; (3) if the exporter is not a firm covered in this review, a
prior review, or the original 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) the cash
deposit rate for all other manufacturers will be the ``all others''
rate as indicated in the final results of the 1993/94 administrative
review of these orders (see Elemental Sulphur from Canada; Final
Results of Antidumping Duty Administrative Reviews 62 FR 37970, 37990
(July 15, 1997)). These deposit requirements shall remain in effect
until publication of the final results of the next administrative
review.
This notice also serves as a preliminary 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 the subsequent
assessment of double antidumping duties.
This determination is issued and published in accordance with
sections 751(a)(1) and 777(i)(1) of the Act.
[[Page 48589]]
Dated: August 31, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-23214 Filed 9-3-99; 8:45 am]
BILLING CODE 3510-DS-P
