[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Notices]
[Pages 50401-50406]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 01-24751]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-823-811]
Notice of Final Determination of Sales at Less Than Fair Value:
Certain Hot-Rolled Carbon Steel Flat Products From Ukraine
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final determination of sales at less than fair value:
certain hot-rolled carbon steel flat products from Ukraine.
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SUMMARY: We determine that certain hot-rolled carbon steel flat
products (``hot-rolled steel'') from Ukraine are being, or are likely
to be, sold in the United States at less than fair value, as provided
in section 735 of the Tariff Act of 1930, as amended (the ``Act''). On
May 3, 2001, the Department of Commerce (the ``Department'') published
its preliminary determination in the less than fair value (``LTFV'')
investigation of certain hot-rolled carbon steel flat products from
Ukraine. See Notice of Preliminary Determination of Sales at Less Than
Fair Value: Certain Hot-Rolled Carbon Steel Flat Products From Ukraine,
66 FR 22152 (May 3, 2001) (``Preliminary Determination''). Based on our
analysis of comments received, the final determination differs from the
preliminary determination. The estimated margins of sales at LTFV are
shown in the ``Final Determination of Investigation'' section of this
notice.
EFFECTIVE DATE: October 3, 2001.
FOR FURTHER INFORMATION CONTACT: Lori Ellison or Rick Johnson of Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC
20230; telephone: (202) 482-5811 and (202) 482-3818, respectively.
The Applicable Statute and Regulations
Unless otherwise indicated, all citations to the Act are references
to the provisions effective January 1, 1995, the effective date of the
amendments made to the Act by the Uruguay Round 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 (2000).
Case History
On May 3, 2001, the Department published its Preliminary
Determination in the LTFV investigation of hot-rolled steel from
Ukraine. As noted in our Preliminary Determination, Zaporizhstal Iron
and Steel Works (``Zaporizhstal'') is the sole participating respondent
in this investigation. The other two Ukrainian producers of subject
merchandise, Dnepropetrovsk Comintern Steel Works (``Dnepropetrovsk'')
and Ilyich Iron & Steel Works, Mariupol (``Ilyich''), failed to respond
to our requests for information. The petitioners in this investigation
are: Bethlehem Steel Corporation, LTV Steel Company, Inc., National
Steel Corporation, U.S. Steel Group, a unit of USX Corporation, the
United Steelworkers of America, Gallatin Steel Company, IPSCO Steel
Inc., Nucor Corp., Steel Dynamics, Inc., Weirton Steel Corp., and
Independent Steelworkers Union (hereinafter ``petitioners'').
For purposes of our preliminary determination, pursuant to section
776(b) of the Act, we applied a single Ukraine-wide antidumping duty
rate to all producers/exporters of hot-rolled steel in Ukraine. This
rate was based on total adverse facts available. See Preliminary
Determination at 22155. As total adverse facts available, we applied
the highest dumping margin from the petition (as adjusted by the
Department), 89.49 percent. See id. at 22157 and Memorandum to Edward
C. Yang, Facts Available Corroboration Memorandum, Preliminary
Determination of Hot-Rolled Carbon Steel Flat Products from Ukraine,
April 23, 2001 (``Preliminary FA/Corroboration Memorandum'').
On May 2, 2001, the Department received a request from the
respondent Zaporizhstal, ``the Midland group of companies'' (i.e.,
Midland Industries Limited, Midland Metals International, Inc., and
Midland Resources Holding Limited), and the State Committee of
Industrial Policy of Ukraine, to postpone its final determination until
135 days after publication of the Department's preliminary
determination and to extend the imposition of provisional measures from
a four-month period to not more than six months, pursuant to section
735(a)(2)(A) of the Act. On May 21, 2001, we published in the Federal
Register our notice to postpone the final determination, pursuant to
those requests. See Certain Hot-Rolled Carbon Steel Flat Products From
Ukraine; Notice of Postponement of Final Determination in the
Antidumping Duty Investigation, 66 FR 27937 (May 21, 2001).
Although we applied to Zaporizhstal total adverse facts available
for purposes of the preliminary determination, we gave the company yet
another opportunity to remedy the deficiencies and inconsistencies in
its response subsequent to the preliminary determination. On April 19,
2001, and May 4, 2001, we issued supplemental questionnaires with due
dates of May 4, 2001, and May 18, 2001, respectively. On May 3, 2001,
the Department granted Zaporizhstal's request of May 2, 2001, that the
April 19, 2001 questionnaire response deadline be extended by two
weeks. Zaporizhstal submitted timely responses to both questionnaires
on May 18, 2001. On May 21, 2001, Zaporizhstal filed information that
was ``inadvertently left out'' of the May 18th submission. On June 12,
2001, petitioners submitted additional information to value the factors
of production.
On June 28, June 29, and July 6, 2001, respectively, well past the
deadline of May 18, 2001 (as supplemented on May 21, 2001), for
responding to our questionnaires, Zaporizhstal filed three
[[Page 50402]]
additional submissions. On July 31, 2001, we issued a letter to
Zaporizhstal in which we rejected these three submissions as untimely
filed responses to our supplemental questionnaires. In this letter, we
informed Zaporizhstal that, in order for the Department to have
considered this information, it should have been filed not later than
with the May 18, 2001, submission (as supplemented on May 21st), in
response to the Department's April 19 and May 4, 2001, supplemental
questionnaires. See Letter from Edward Yang to Bruce Aitken, dated July
31, 2001; and Memorandum to the File from Lori Ellison to Rick Johnson,
dated July 27, 2001. On August 2, 2001, counsels to Zaporizhstal and
petitioners were notified via telephone that the Department determined
not to conduct a verification of Zaporizhstal's sales and normal value
data. See Memorandum to the File from Lori Ellison to Rick Johnson;
Decision Not to Conduct a Verification of Respondent's Data, dated
August 2, 2001.
On August 9, 2001, Zaporizhstal submitted its case brief with a
supplement. On August 14, 2001, the petitioners submitted a rebuttal
brief. On August 23, 2001, the petitioners withdrew their request of
May 24, 2001, for a hearing. See Memorandum from Lori Ellison to Rick
Johnson regarding Withdrawal of Request for Hearing, dated August 23,
2001.
On June 15, 2001, we determined not to initiate a middleman dumping
investigation. See Memorandum to Joseph A. Spetrini from Edward Yang
Regarding Certain Hot-Rolled Carbon Steel Flat Products from Ukraine:
Whether to Initiate a Middleman Dumping Investigation, dated June 15,
2001.
On May 18, 2001, Zaporizhstal commented regarding its request for
revocation of Ukraine's non-market economy (``NME'') status or for
market oriented industry (``MOI'') treatment. This submission was
provided in response to the Department's letter of February 26, 2001,
in which the Department requested that Zaporizhstal address the
statutory criteria for revoking a country's NME status and the
established criteria for granting MOI treatment. See Department's
February 26, 2001 letter from Rick Johnson to Mr. Kieran Sharpe
(``February 26, 2001 Letter''). On July 11, 2001, Zaporizhstal further
addressed the criteria for revoking Ukraine's NME status. On July 24,
2001, the petitioners submitted comments on Zaporizhstal's analysis. On
August 8, 2001, the Embassy of Ukraine, on behalf of the Ministry of
Economy of Ukraine, submitted information and evidence necessary for
the Department's consideration of Ukraine's NME status.
On May 8, 2001, the Embassy of Ukraine requested that the
Department consider an agreement suspending this investigation. The
request was accompanied by a proposed suspension agreement. In a letter
of July 30, 2001, the Department invited the Ministry of Economy of
Ukraine to discuss the details of this proposal. On August 2, 2001
petitioners submitted comments on the negotiations between the
Department and the Government of Ukraine, arguing that negotiation or
conclusion of an agreement is untimely and not in compliance with the
Department's regulations. On August 10, 2001, the Department submitted
a memorandum to the file, explaining that the ``Department's
regulations allow for flexibility, especially with regard to procedural
deadlines where the Secretary determines there is good cause.'' See
Memorandum to the File from Joe Spetrini, Deputy Assistant Secretary,
to Faryar Shirzad, Assistant Secretary for Import Administration
(August 10, 2001), at 2. On August 13 and 14, 2001, Department
officials met with Ukrainian government officials and consulted
regarding the proposed suspension agreement. The Department and the
Government of Ukraine did not initial or sign a suspension agreement
regarding this investigation. Consequently, petitioners' comments are
moot.
Although the deadline for this determination was originally
September 15, 2001, in light of the events of September 11, 2001, and
the subsequent closure of the Federal Government for reasons of
security, the time frame for issuing this determination has been
extended by four days.
Period of Investigation
The period of investigation (``POI'') is April 1, 2000, through
September 30, 2000. This period corresponds to the two most recent
fiscal quarters prior to the month of the filing of the petition (i.e.,
November 2000). See 19 CFR 351.204(b)(1).
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this proceeding and to which we have responded are listed in the
Appendix to this notice and addressed in the Issues and Decision
Memorandum for the Antidumping Duty Investigation of Certain Hot-Rolled
Carbon Steel Flat Products From Ukraine (``Issues and Decision
Memorandum''), dated September 21, 2001, which is hereby adopted by
this notice. Parties can find a complete discussion of the issues
raised in this investigation and the corresponding recommendations in
this public memorandum, which is on file in the Central Records Unit,
room (B-099) of the main Department building. In addition, a complete
version of the Issues and Decision Memorandum can be accessed directly
on the Web at http://ia.ita.doc.gov. The paper copy and electronic
version of the Issues and Decision Memorandum are identical in content.
Changes Since the Preliminary Determination
Based on our analysis of the comments received, we have made
adjustments to the preliminary determination methodologies in
calculating the final dumping margin in this proceeding. While we
continued to use Indonesia as the surrogate country, we made the
following changes: (1) we applied an updated inflation factor based on
the entire POI; and (2) we applied an updated exchange rate based upon
the entire POI. These adjustments are discussed in the Memorandum to
Edward C. Yang, Facts Available Corroboration Memorandum, Final
Determination of Hot-Rolled Carbon Steel Flat Products from Ukraine,
September 21, 2001 (``Final FA/Corroboration Memorandum'') at
Attachment II.
Verification
We determined to not verify the information submitted by
Zaporizhstal, as required by section 782 (i)(1) of the Act, because of
its incompleteness. See Final FA/Corroboration Memorandum and
Memorandum to the File from Lori Ellison to Rick Johnson; Decision Not
to Conduct a Verification of Respondent's Data, dated August 2, 2001.
Scope of Investigation
For purposes of this investigation, the products covered are
certain hot-rolled carbon steel flat products of a rectangular shape,
of a width of 0.5 inch or greater, neither clad, plated, nor coated
with metal and whether or not painted, varnished, or coated with
plastics or other non-metallic substances, in coils (whether or not in
successively superimposed layers), regardless of thickness, and in
straight lengths of a thickness of less than 4.75 mm and of a width
measuring at least 10 times the thickness. Universal mill plate (i.e.,
flat-rolled products rolled on four faces or in a closed box pass, of a
width exceeding 150 mm, but not exceeding 1250 mm, and of a thickness
of not less than 4.0 mm, not in coils and
[[Page 50403]]
without patterns in relief) of a thickness not less than 4.0 mm is not
included within the scope of this investigation.
Specifically included within the scope of this investigation are
vacuum degassed, fully stabilized (commonly referred to as
interstitial-free (IF)) steels, high strength low alloy (HSLA) steels,
and the substrate for motor lamination steels. IF steels are recognized
as low carbon steels with micro-alloying levels of elements such as
titanium or niobium (also commonly referred to as columbium), or both,
added to stabilize carbon and nitrogen elements. HSLA steels are
recognized as steels with micro-alloying levels of elements such as
chromium, copper, niobium, vanadium, and molybdenum. The substrate for
motor lamination steels contains micro-alloying levels of elements such
as silicon and aluminum.
Steel products to be included in the scope of this investigation,
regardless of definitions in the Harmonized Tariff Schedule of the
United States (HTSUS), are products in which: (i) iron predominates, by
weight, over each of the other contained elements; (ii) the carbon
content is 2 percent or less, by weight; and (iii) none of the elements
listed below exceeds the quantity, by weight, respectively indicated:
1.80 percent of manganese, or
2.25 percent of silicon, or
1.00 percent of copper, or
0.50 percent of aluminum, or
1.25 percent of chromium, or
0.30 percent of cobalt, or
0.40 percent of lead, or
1.25 percent of nickel, or
0.30 percent of tungsten, or
0.10 percent of molybdenum, or
0.10 percent of niobium, or
0.15 percent of vanadium, or
0.15 percent of zirconium.
All products that meet the physical and chemical description
provided above are within the scope of this investigation unless
otherwise excluded. The following products, by way of example, are
outside or specifically excluded from the scope of this investigation:
Alloy hot-rolled steel products in which at least one of
the chemical elements exceeds those listed above (including, e.g.,
American Society for Testing and Materials (ASTM) specifications A543,
A387, A514, A517, A506).
Society of Automotive Engineers (SAE)/American Iron &
Steel Institute (AISI) grades of series 2300 and higher.
Ball bearing steels, as defined in the HTSUS.
Tool steels, as defined in the HTSUS.
Silico-manganese (as defined in the HTSUS) or silicon
electrical steel with a silicon level exceeding 2.25 percent.
ASTM specifications A710 and A736.
USS abrasion-resistant steels (USS AR 400, USS AR 500).
All products (proprietary or otherwise) based on an alloy
ASTM specification (sample specifications: ASTM A506, A507).
Non-rectangular shapes, not in coils, which are the result
of having been processed by cutting or stamping and which have assumed
the character of articles or products classified outside chapter 72 of
the HTSUS.
The merchandise subject to this investigation is classified in the
HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00,
7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60,
7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60,
7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30,
7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90,
7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00,
7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00,
7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30,
7211.19.75.60, and 7211.19.75.90. Certain hot-rolled carbon steel flat
products covered by this investigation, including: vacuum degassed
fully stabilized; high strength low alloy; and the substrate for motor
lamination steel may also enter under the following tariff numbers:
7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00,
7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30,
7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00,
7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise
may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30,
7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS
subheadings are provided for convenience and U.S. Customs purposes, the
written description of the merchandise under investigation is
dispositive.
Non-Market Economy Country Status
The Department has treated Ukraine as a NME country in all past
antidumping investigations. See, e.g., Notice of Preliminary
Determinations of Sales at Less Than Fair Value: Steel Concrete
Reinforcing Bars from Poland, Indonesia, and Ukraine, 66 FR 8343
(January 30, 2001) and Notice of Final Determination of Sales at Less
Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from Ukraine
(``CTL Plate from Ukraine'') 62 FR 61754 (November 19, 1997). This NME
designation remains in effect until it is revoked by the Department
(see section 771(18)(C) of the Act).
During this investigation, Zaporizhstal requested revocation of
Ukraine's NME status. Following the official endorsement of this
request by the Ukrainian government, the Department issued its February
26, 2001 Letter to Zaporizhstal and the Ukrainian Embassy requesting,
inter alia, that the company and the Government of Ukraine submit
evidence addressing the statutory criteria relevant to the NME status,
as described in section 771(18)(B) of the Act. In addition, the
Department requested that Zaporizhstal submit evidence of progress
regarding those factors under section 771(18)(B) which Ukraine did not
satisfy in its 1996 request for revocation. See CTL Plate from Ukraine,
62 FR 61754. For purposes of our Preliminary Determination on April 23,
2001, we continued to treat Ukraine as a NME because we had received no
response to this request for information and there was no record
evidence or argumentation regarding progress since the earlier
determination.
As noted above, after the preliminary determination, several
submissions were made regarding NME revocation. On May 18, 2001,
Zaporizhstal and the Ukrainian State Committee on Industrial Policy
jointly submitted information in response to the Department's February
26, 2001 Letter regarding market economy and market oriented industry
issues. This submission addresses, in a narrative form, each of the
statutory criteria specified in our February 26, 2001 Letter, and
includes a discussion of recent factual trends, referencing certain
relevant Ukrainian decrees/laws. On July 11, 2001, Zaporizhstal and the
Ukrainian State Committee on Industrial Policy jointly submitted
further commentary regarding the statutory criteria, including a more
detailed reference to the applicable Ukrainian laws and decrees. On
July 24, 2001, the petitioners submitted comments on Zaporizhstal's
analysis. On August 8, 2001, the Ministry of Economy of Ukraine filed a
submission that included much of the same information presented in the
July 11, 2001 submission, in addition to further analysis of certain
issues and excerpts from ``some legislative documents related to Market
Status of Ukraine.''
We note that, in previous instances in which the Department has
considered
[[Page 50404]]
graduation to market economy status, initial requests for revocation of
NME status and supporting information have been submitted at the outset
of the proceeding. See e.g., Memorandum from Holly A. Kuga, to Troy H.
Cribb: Antidumping Duty Investigation of Certain Steel Concrete
Reinforcing Bars from Latvia--Request for Market Economy Status
(January 12, 2001); Memorandum from David Mueller to Robert LaRussa:
Antidumping Investigation of Certain Small Diameter Carbon and Alloy
Seamless Standard Line and Pressure Pipe from the Czech Republic: Non-
Market Economy (``NME'') Country Status, (November 29, 1999);
Memorandum from Bernard Carreau to Troy Cribb: Antidumping Duty
Determinations on Cold-Rolled Carbon-Quality Steel Products from the
Slovak Republic--Market vs. Non-Market Economy Analysis, (October 13,
1999); Memorandum from Joseph A. Spetrini to Robert LaRussa:
Antidumping Administrative Review of Tapered Roller Bearings and Parts
Thereof, Finished or Unfinished, from Hungary--Market vs. Non-Market
Economy (NME) Analysis Memorandum, (February 23, 2000); Respondent's
August 28, 1992 submission in the Investigation of Sales at less than
Fair Value: Certain Cut-to-length Carbon Steel Plate from Poland; and
submission from the Embassy of Ukraine, dated February 12, 1997,
Investigation of Sales at less than Fair Value; Certain Cut-to-length
Carbon Steel Plate from Ukraine. In all of these cases the initial
requests to revoke a country's NME status, including supporting
information, have been submitted well in advance of the preliminary
determination, thereby giving the Department sufficient time to conduct
a complicated and time-consuming analysis of the factors enunciated in
section 771(18)(B) of the Act. In this case, although Zaporizhstal's
initial request for revocation was submitted 66 days after the
initiation, the company submitted its first response 25 days after the
preliminary determination and 165 days after the initiation of this
investigation. The Government of Ukraine's response was submitted
nearly eight months after the initiation of this investigation, which
is only slightly more than one month prior to the extended final
determination. Given that Zaporizhstal's and the Government of
Ukraine's responses were submitted so late in the proceeding, we were
unable to adequately consider and analyze them, as mandated by the
criteria outlined in section 771(B)(18) of the Act.
Market-Oriented Industry
As indicated above (see ``Case History''), Zaporizhstal, with the
support of the Government of Ukraine, has requested MOI treatment for
the hot-rolled steel industry in Ukraine. Accordingly, in our February
26, 2001 Letter, we requested that Zaporizhstal address the
Department's criteria for granting MOI status. On May 18, 2001,
Zaporizhstal and the Ukrainian State Committee on Industrial Policy
jointly submitted a response to the Department's established criteria
for granting MOI status.
The criteria for determining whether a MOI exists are: (1) For the
merchandise under investigation, there must be virtually no government
involvement in setting prices or amounts to be produced; (2) the
industry producing the merchandise under investigation should be
characterized by private or collective ownership; and (3) market-
determined prices must be paid for all significant inputs, whether
material or non-material (e.g., labor and overhead), and for all but an
insignificant portion of all the inputs accounting for the total value
of the merchandise under review. See, e.g., Certain Small Diameter
Carbon and Alloy Seamless Standard, Line and Pressure Pipe from
Romania, Final Determination of Sales at Less than Fair Value, 65 FR
39125 (June 23, 2000) (``Pressure Pipe from Romania'') and Freshwater
Crawfish Tail Meat from the People's Republic of China, Final
Determination of Sales at Less than Fair Value, 62 FR 41347 (August 1,
1997) (``Crawfish from China''). Moreover, in order to make an
affirmative determination that an industry in a NME country is a MOI,
the Department requires information on virtually the entire industry. A
MOI claim, and supporting evidence, must cover producers that
collectively constitute the industry in question; otherwise, the MOI
claim cannot be substantiated. See, id. e.g. Crawfish from China at
41353 and Pressure Pipe from Romania at 39125.
In this case, consistent with our Preliminary Determination, we
continue to find that the hot-rolled industry in Ukraine does not meet
the Department's criteria for an affirmative MOI finding because we do
not have supporting evidence that would cover the entire hot-rolled
industry in Ukraine. As we have noted above, there are three known
producers of subject merchandise: Ilyich, Dnepropertrovsk, and
Zaporizhstal. Of these three, Ilyich and Dnepropetrowsk have failed to
respond to the Department's questionnaire. Although Zaporizhstal and
the Government of Ukraine included in their May 18, 2001, submission
documentation supporting MOI treatment, this documentation is specific
to one company, Zaporizhstal, rather than to the entire hot-rolled
industry. Moreover, we have not received any industry-wide information
from the Government of Ukraine to support the claim that the hot-rolled
industry is market-oriented. See Crawfish from China at 41353
(``Consistent with past practice, we require information on the entire
industry, or virtually the entire industry, in order to make an
affirmative determination that an industry is market-oriented.'').
Therefore, for purposes of our final determination, we continue to find
that the hot-rolled industry in Ukraine does not qualify for MOI
treatment.
Ukraine-Wide Rate
As noted in the preliminary determination, we sent questionnaires
to all three companies identified as potential respondents in the
petition. We did not receive responses from Ilyich and Dnepropetrovsk.
As discussed below in the ``Separate Rates'' section of the notice,
Zaporizhstal has significantly impeded this investigation. Given that
we did not make a determination of a separate rate for Zaporizhstal, it
has been assigned the Ukraine-wide rate. In addition, U.S. import
statistics indicate that the total quantity and value of U.S. imports
of hot-rolled steel from Ukraine is greater than the total quantity and
value of hot-rolled steel as reported by Zaporizhstal. See Final FA/
Corroboration Memorandum. Accordingly, we are applying the Ukraine-wide
rate to all exporters in Ukraine based on our presumption that those
respondents who failed to respond to our questionnaire constitute a
single enterprise under common control by the Government of Ukraine.
See, e.g., Final Determination of Sales at Less Than Fair Value:
Bicycles from the People's Republic of China, 61 FR 19026 (April 30,
1996) (``Bicycles''). Therefore, the Ukraine-wide rate applies to all
entries of the subject merchandise from Ukraine.
Application of Facts Available
Section 776(a) of the Act provides that, if an interested party
withholds information that has been requested by the Department, fails
to provide such information in a timely manner or in the form or manner
requested, significantly impedes a proceeding under the antidumping
statute, or provides
[[Page 50405]]
information which cannot be verified, the Department shall use, subject
to sections 782(d) and (e) of the Act, facts otherwise available in
reaching the applicable determination. The statute requires that
certain conditions be met before the Department may resort to facts
available. Where the Department determines that a response to a request
for information does not comply with the request, section 782(d) of the
Act provides that the Department will so inform the party submitting
the response and will, to the extent practicable, provide that party
the opportunity to remedy or explain the deficiency. If the party fails
to remedy the deficiency within the applicable time limits, the
Department may, subject to section 782(e) of the Act, disregard all or
part of the original and subsequent responses, as appropriate. Pursuant
to section 782(e) of the Act, the Department shall not decline to
consider information deemed ``deficient'' under section 782(d) of the
Act if: (1) The information is submitted by the established deadline;
(2) the information can be verified; (3) the information is not so
incomplete that it cannot serve as a reliable basis for reaching the
applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability; and (5) the information can
be used without undue difficulties.
In selecting from among the facts available, section 776(b) of the
Act authorizes the Department to use an adverse inference, if the
Department finds that an interested party failed to cooperate by not
acting to the best of its ability to comply with the request for
information. See also SAA at 870. The statute and the SAA provide that
such an adverse inference may be based on secondary information,
including information drawn from the petition.
In accordance with sections 776(a) and (b) of the Act, for the
reasons explained below, we determine that the use of total adverse
facts available is warranted with respect to respondents
Dnepropetrovsk, Ilyich, and Zaporizhstal.
Ilyich and Dnepropetrovsk
As we have explained in our Preliminary FA/Corroboration
Memorandum, Dnepropetrovsk and Ilyich failed to respond to the
Department's questionnaire. Thus, pursuant to sections 776(a)(2)(A) and
(C), we will continue using facts otherwise available with respect to
these companies for purposes of our final determination. Moreover these
companies' failure to respond to our requests for information
demonstrates lack of cooperation within the meaning of section 776(b)
of the Act. Therefore, consistent with our Preliminary Determination,
we will continue using adverse inferences with respect to these
companies when applying facts available for purposes of this final
determination.
Zaporizhstal
Although Zaporizhstal made an attempt to respond in part to the
Department's questionnaires and supplemental questionnaires over the
course of this proceeding, its overall responses were too incomplete to
be used as a basis for calculating a dumping margin. For a detailed
analysis of Zaporizhstal's responses and their underlying deficiencies,
see Final FA/Corroboration Memorandum. Therefore, for the reasons
described in the Final FA/Corroboration Memorandum, we determined to
use facts otherwise available, pursuant to section 776(a)(2)(A) and (B)
of the Act.
We also find that the application of adverse inferences in this
case is appropriate, pursuant to section 776(b) of the Act. In the
course of this investigation, Zaporizhstal was afforded numerous
opportunities to provide information in a form and manner required by
the Department. Despite the Department's clear directions in both the
original and many supplemental questionnaires, Zaporizhstal failed to
provide critical information which was readily at the company's
disposal. See Final FA/Corroboration Memorandum for a detailed
explanation of the deficiencies in Zaporizhstal's responses.
Thus, we find that the company did not cooperate to the best of its
ability in responding to the Department's request for information, and
that, consequently, an adverse inference is warranted under section
776(b) of the Act when selecting facts available, consistent with the
Department's practice. See e.g., Notice of Final Determination of Sales
at Less than Fair Value: Circular Seamless Stainless Steel Hollow
Products from Japan, 65 FR 42985 (July 12, 2000).
Selection and Corroboration of Facts Available
Section 776(b) of the Act states that an adverse inference may
include reliance on information derived from the petition. See also SAA
at 829-831. Section 776(c) of the Act provides that, when the
Department relies on secondary information (such as the petition rates)
as facts available, it must, to the extent practicable, corroborate
that information from independent sources that are reasonably at its
disposal. The SAA clarifies that ``corroborate'' means that the
Department will satisfy itself that the secondary information to be
used has probative value. See SAA at 870. The SAA also states that
independent sources used to corroborate may include, for example,
published price lists, official import statistics and customs data, and
information obtained from interested parties during the particular
investigation. Id.
As discussed in our Preliminary Determination, we reviewed the
adequacy and accuracy of the information in the petition during our
pre-initiation analysis of the petition, to the extent appropriate
information was available for this purpose. In order to determine the
probative value of the petition margin for use as adverse facts
available in this determination, we have re-examined evidence
supporting the petition calculation (as adjusted by the Department). In
accordance with section 776(c) of the Act, to the extent practicable,
we examined the key elements of the U.S. price and normal value
calculations on which the Department-adjusted petition margin was based
and compared the sources used in the initiation to information from
independent sources reasonably at our disposal. Since the Preliminary
Determination, we reviewed updated information from independent sources
and made the following changes: (1) We applied an updated inflation
factor based on the entire POI; and (2) we applied an updated exchange
rate based upon the entire POI. We have adjusted our calculation
accordingly. These adjustments are discussed in the Final FA/
Corroboration Memorandum at Attachment II. We conclude that the 90.33
percent margin, the highest rate from the petition (as adjusted by the
Department), is relevant with respect to Zaporizhstal. See Final FA/
Corroboration Memorandum at 8-10.
Separate Rates
It is the Department's policy to assign all exporters of
merchandise subject to investigation in a NME country a single rate,
unless an exporter can demonstrate that it is sufficiently independent
from government control so as to be entitled to a separate rate. In
this case, the single responding company, Zaporizhstal, has claimed to
be sufficiently independent to warrant a separate rate. However, given
that Zaporizhstal failed to cooperate in this investigation to the best
of its ability, we did not make a determination as to whether
Zaporizhstal merits a separate rate, and are assigning a single
country-wide rate for all exporters of subject merchandise from
Ukraine.
[[Page 50406]]
Final Determination of Investigation
We determine that the following weighted-average percentage margin
exists for the period April1, 2000 through September 30, 2000:
------------------------------------------------------------------------
Weighted-
Exporter/manufacturer average margin
(in percent)
------------------------------------------------------------------------
Ukraine-Wide Rate....................................... 90.33
------------------------------------------------------------------------
Continuation of Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, we are
instructing the U.S. Customs Service (``Customs'') to continue to
suspend liquidation of all entries of subject merchandise entered, or
withdrawn from warehouse, for consumption on or after the date of
publication of this notice in the Federal Register. We will instruct
Customs to continue to require a cash deposit or the posting of a bond
equal to the weighted-average amount by which the NV exceeds the EP, as
indicated above. These suspension-of-liquidation instructions will
remain in effect until further notice.
International Trade Commission Notification
In accordance with section 735(d) of the Act, we have notified the
International Trade Commission (``ITC'') of our determination. As our
final determination is affirmative, the ITC will, within 45 days,
determine whether these imports are materially injuring, or threaten
material injury to, the U.S. industry. If the ITC determines that
material injury, or threat of material injury does not exist, the
proceeding will be terminated and all securities posted will be
refunded or canceled. If the ITC determines that such injury does
exist, the Department will issue an antidumping duty order directing
Customs officials to assess antidumping duties on all imports of the
subject merchandise entered for consumption on or after the effective
date of the suspension of liquidation.
This determination is issued and published in accordance with
sections 735(d) and 777(i)(1) of the Act.
Dated: September 21, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.
Appendix--Issues in Decision Memorandum
I. Facts Available
Comment 1: Factors of Production/Calculation Methodology and
Format
Comment 2: Product Codes
Comment 3: Reporting of Sales
Comment 4: Correspondence between Midland Resources' and
Zaporizhstal's Datafiles
II. Rejection of Certain Submissions as Untimely Filed
Comment 5: Rejection of Zaporizhstal's Submissions of June 28,
June 29, and July 6, 2001
[FR Doc. 01-24751 Filed 10-2-01; 8:45 am]
BILLING CODE 3510-DS-P