[Federal Register Volume 64, Number 232 (Friday, December 3, 1999)]
[Notices]
[Pages 67858-67861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31429]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-588-806]


Final Results of Expedited Sunset Review: Electrolytic Manganese 
Dioxide From Japan

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.


[[Page 67859]]


ACTION: Notice of final results of expedited sunset review: 
Electrolytic manganese dioxide from Japan.

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SUMMARY: On May 3, 1999, the Department of Commerce (``the 
Department'') initiated a sunset review of the antidumping duty order 
on electrolytic manganese dioxide from Japan (64 FR 23596) pursuant to 
section 751(c) of the Tariff Act of 1930, as amended (``the Act''). On 
the basis of a notice of intent to participate and adequate substantive 
comments filed on behalf of domestic interested parties and inadequate 
response (in this case, no response) from respondent interested 
parties, the Department determined to conduct an expedited review. As a 
result of this review, the Department finds that revocation of the 
antidumping duty order would be likely to lead to continuation or 
recurrence of dumping at the levels indicated in the Final Results of 
Review section of this notice.

FOR FURTHER INFORMATION CONTACT: Darla D. Brown or Melissa G. Skinner, 
Office of Policy for Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
3207 or (202) 482-1560, respectively.

EFFECTIVE DATE: December 3, 1999.

Statute and Regulations

    This review was conducted pursuant to sections 751(c) and 752 of 
the Act. The Department's procedures for the conduct of sunset reviews 
are set forth in Procedures for Conducting Five-year (``Sunset'') 
Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516 
(March 20, 1998) (``Sunset Regulations''), and 19 CFR Part 351 (1999) 
in general. Guidance on methodological or analytical issues relevant to 
the Department's conduct of sunset reviews is set forth in the 
Department's Policy Bulletin 98:3--Policies Regarding the Conduct of 
Five-year (``Sunset'') Reviews of Antidumping and Countervailing Duty 
Orders; Policy Bulletin, FR 18871 (April 16, 1998) (``Sunset Policy 
Bulletin'').

Scope

    The merchandise subject to this antidumping duty order is 
electrolytic manganese dioxide (``EMD''). EMD is manganese dioxide 
(MnO2) that has been refined in an electrolysis process. The 
subject merchandise is an intermediate product used in the production 
of dry-cell batteries. EMD is sold in three physical forms, powder, 
chip, or plate, and two grades, alkaline and zinc chloride. EMD in all 
three forms and both grades is included in the scope of the order.
    There has been one scope clarification with regard to EMD from 
Japan. On January 6, 1992, the Department ruled that high-grade 
chemical manganese dioxide (CMD-U) is within the scope of the order.\1\
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    \1\ See Electrolytic Manganese Dioxide from Japan; Final Scope 
Ruling, 57 FR 395 (January 6, 1992).
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    This merchandise is currently classifiable under the Harmonized 
Tariff Schedule (``HTS'') item number 2820.10.0000. The HTS item number 
is provided for convenience and customs purposes. The written 
description remains dispositive.

History of the Order

    The Department, in its final determination of sales at less than 
fair value (``LTFV''), published two company-specific weighted-average 
dumping margins as well as an ``all others'' rate (54 FR 8778, March 2, 
1989). The antidumping duty order on EMD from Japan was published in 
the Federal Register on April 17, 1989 (54 FR 15244). Since that time, 
the Department has conducted three administrative reviews.2 
This sunset review covers imports from all known Japanese producers/
exporters. To date, the Department has issued no duty-absorption 
findings in this case.
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    \2\ See Final Results of Antidumping Duty Administrative Review: 
Electrolytic Manganese Dioxide From Japan, 58 FR28551 (May 14, 
1993), and Final Results of Antidumping Duty Administrative Reviews: 
Electrolytic Manganese Dioxide From Japan, 59 FR 53136 (October 21, 
1994).
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Background

    On May 3, 1999, the Department initiated a sunset review of the 
antidumping duty order on EMD from Japan (64 FR 23596), pursuant to 
section 751(c) of the Act. The Department received a notice of intent 
to participate on behalf of Chemetals, Inc. (``Chemetals''), and Kerr-
McGee Chemical LLC (``KMC'') (collectively, ``domestic interested 
parties'') on May 18, 1999, within the deadline specified in section 
351.218(d)(1)(i) of the Sunset Regulations. We received a complete 
substantive response from Chemetals and KMC on June 2, 1999, within the 
30-day deadline specified in the Sunset Regulations in section 
351.218(d)(3)(i). Both Chemetals and Kerr-McGee claimed interested-
party status pursuant to section 771(9)(C) of the Act as U.S. producers 
of a like product. In addition, both Chemetals and KMC stated that they 
participated in the original investigation and every segment of the 
proceeding since the original investigation. We did not receive any 
response from respondent interested parties to this proceeding. As a 
result, pursuant to section 351.218(e)(1)(ii)(C) of the Sunset 
Regulations, the Department determined to conduct an expedited, 120-
day, review of this order.
    In accordance with section 751(c)(5)(C)(v) of the Act, the 
Department may treat a review as extraordinarily complicated if it is a 
review of a transition order (i.e., an order in effect on January 1, 
1995). On September 7, 1999, the Department determined that the sunset 
review of the antidumping duty order on EMD from Japan is 
extraordinarily complicated and extended the time limit for completion 
of the final results of this review until not later than November 29, 
1999, in accordance with section 751(c)(5)(B) of the Act.3
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    \3\ See Extension of Time Limit for Final Results of Five-Year 
Reviews, 64 FR 48579 (September 7, 1999).
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Determination

    In accordance with section 751(c)(1) of the Act, the Department 
conducted this review to determine whether revocation of the 
antidumping duty order would be likely to lead to continuation or 
recurrence of dumping. Section 752(c) of the Act provides that, in 
making this determination, the Department shall consider the weighted-
average dumping margins determined in the investigation and subsequent 
reviews and the volume of imports of the subject merchandise for the 
period before and the period after the issuance of the antidumping duty 
order, and it shall provide to the International Trade Commission 
(``the Commission'') the magnitude of the margin of dumping likely to 
prevail if the order is revoked.
    The Department's determinations concerning continuation or 
recurrence of dumping and the magnitude of the margin are discussed 
below. In addition, interested parties' comments with respect to 
continuation or recurrence of dumping and the magnitude of the margin 
are addressed within the respective sections below.

Continuation or Recurrence of Dumping

    Drawing on the guidance provided in the legislative history 
accompanying the Uruguay Round Agreements Act (``URAA''), specifically 
the Statement of Administrative Action (``the SAA''), H.R. Doc. No. 
103-316, vol. 1 (1994), the House Report, H.R. Rep. No. 103-826, pt.1 
(1994), and the Senate Report, S. Rep. No. 103-412 (1994), the 
Department issued its Sunset Policy

[[Page 67860]]

Bulletin providing guidance on methodological and analytical issues, 
including the bases for likelihood determinations. In its Sunset Policy 
Bulletin, the Department indicated that determinations of likelihood 
will be made on an order-wide basis (see section II.A.2). In addition, 
the Department indicated that normally it will determine that 
revocation of an antidumping duty order is likely to lead to 
continuation or recurrence of dumping where: (a) Dumping continued at 
any level above de minimis after the issuance of the order, (b) imports 
of the subject merchandise ceased after the issuance of the order, or 
(c) dumping was eliminated after the issuance of the order and import 
volumes for the subject merchandise declined significantly (see section 
II.A.3 of the Sunset Policy Bulletin).
    In addition to considering the guidance on likelihood cited above, 
section 751(c)(4)(B) of the Act provides that the Department shall 
determine that revocation of an order is likely to lead to continuation 
or recurrence of dumping where a respondent interested party waives its 
participation in the sunset review. In the instant review, the 
Department did not receive a response from any respondent interested 
party. Pursuant to section 351.218(d)(2)(iii) of the Sunset 
Regulations, this constitutes a waiver of participation.
    In their substantive response, the domestic interested parties 
argue that revocation of the order on EMD from Japan would be likely to 
lead to continuation or recurrence of dumping due to the fact that 
dumping margins above de minimis  have been calculated after the 
issuance of the order and import volumes declined sharply following the 
imposition of the order.
    The domestic interested parties assert that, in administrative 
reviews conducted after the imposition of the order, the Department 
calculated margins well above de minimis for Tosoh Corporation (see 
June 2, 1999, substantive response of the domestic interested parties 
at 7). They also argue that imports of EMD from Japan fell from 
approximately 19,000 short tons in 1988, the year before the order was 
imposed, to approximately 143 short tons in 1989, the year in which the 
order was imposed. Moreover, the domestic interested parties assert 
that, since the order was imposed, imports of Japanese EMD have 
remained at relatively negligible levels (less than one percent of 
their pre-order volume (see id. at 8)). Therefore, they conclude that 
the sharp decline in import volumes accompanied by the continued 
existence of dumping margins above de minimis  after the imposition of 
the order provides a strong indication that dumping would continue or 
recur if the order is revoked.
    The Department agrees, based on an examination of the final results 
of administrative reviews, that dumping margins above de minimis  
levels have continued throughout the life of the order. As discussed in 
section II.A.3 of the Sunset Policy Bulletin, the SAA at 890, and the 
House Report at 63-64, if companies continue dumping with the 
discipline of an order in place, the Department may reasonably infer 
that dumping would continue if the discipline were removed.
    With respect to import levels, the Department agrees that imports 
of the subject merchandise decreased in 1990, the year following the 
imposition of the order. However, since that time, imports of EMD from 
Japan have fluctuated greatly, showing no overall trend.4
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    \4\ The Department bases this determination on information 
contained in U.S. IM146 Reports, U.S. Department of Commerce 
statistics, U.S. Department of Treasury statistics, and information 
obtained from the U.S. International Trade Commission.
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    As explained above, the Department finds that the existence of 
dumping margins after the issuance of the order is highly probative of 
the likelihood of continuation or recurrence of dumping. A deposit rate 
above a de minimis  level remains in effect for exports of the subject 
merchandise for at least one known Japanese producer/exporter. Given 
that dumping has continued over the life of the order and respondent 
interested parties waived their right to participate in this review 
before the Department, and absent argument and evidence to the 
contrary, the Department determines that dumping is likely to continue 
or recur if the order is revoked.

Magnitude of the Margin

    In the Sunset Policy Bulletin, the Department stated that normally 
it will provide to the Commission the margin that was determined in the 
final determination in the original investigation. Further, for 
companies not specifically investigated or for companies that did not 
begin shipping until after the order was issued, normally the 
Department will provide a margin based on the ``all others'' rate from 
the investigation. (See section II.B.1 of the Sunset Policy Bulletin.) 
Exceptions to this policy include the use of a more recently calculated 
margin, where appropriate, and consideration of duty-absorption 
determinations. (See sections II.B.2 and 3 of the Sunset Policy 
Bulletin.) To date, the Department has not made any duty-absorption 
findings in this case.
    In their substantive response, the domestic interested parties 
suggest that the Department adhere to its normal policy and select the 
margins from the original investigation for Mitsui Mining and Smelting 
(``Mitsui'') and the ``all others'' rate. However, they recommend that 
the Department forward to the Commission the more recently calculated 
margin from the second administrative review of 77.43 percent for Tosoh 
Corporation (``Tosoh''). The domestic interested parties point out that 
Tosoh participated in the first administrative review (1990-91) and 
received a rate of 20.43 percent, lower than the 71.91 percent margin 
determined for Tosoh in the original LTFV investigation and antidumping 
duty order. They argue that Tosoh seemed content with its margin of 
20.43 percent and, thus, sought to ``lock in'' that rate and thereby 
avoid a possibly higher margin by refusing to participate in the second 
(1991-92) and third (1992-93) administrative reviews (see June 2, 1999, 
substantive response of the domestic interested parties at 10). 
Therefore, the domestic interested parties argue that the Department 
should conclude that the dumping margin of 77.43 percent determined in 
the 1991-92 and 1992-93 reviews most accurately reflects Tosoh's likely 
dumping margin should revocation occur.
    We agree with the domestic interested parties that we should 
forward to the Commission the rates from the original investigation for 
Mitsui and ``all others.'' As for the margin for Tosoh, the Department 
disagrees with the domestic interested parties. As noted in the Sunset 
Regulations and Sunset Policy Bulletin, the Department may provide to 
the Commission a more recently calculated margin for a particular 
company where dumping margins increased after the issuance of the order 
or if that particular company increased dumping to maintain or increase 
market share. Such circumstances are not present in this case. As noted 
above, domestic interested parties argued that import volumes actually 
declined over the life of the order and the domestic interested parties 
did not provide any argument or evidence that Tosoh was attempting to 
increase or maintain market share.
    Therefore, consistent with the Sunset Policy Bulletin, the 
Department determines that the margins calculated in the original 
investigation are probative of the behavior of Japanese producers/
exporters of EMD if the order were revoked as they are the only rates

[[Page 67861]]

which reflect the behavior of these producers and exporters without the 
discipline of the order in place. As such, the Department will report 
to the Commission the company-specific and ``all others'' rates from 
the original investigation as contained in the Final Results of Review 
section of this notice.

Final Results of Review

    As a result of this review, the Department finds that revocation of 
the antidumping duty order would likely lead to continuation or 
recurrence of dumping at the margins listed below:

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (percent)
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Mitsui Mining and Smelting (``Mitsui'')....................        77.73
Tosoh Corporation (``Tosoh'')..............................        71.91
All Others.................................................        73.30
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    This notice serves as the only reminder to parties subject to 
administrative protective order (``APO'') of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305 of the Department's regulations. 
Timely notification of return/destruction of APO materials or 
conversion to judicial protective order is hereby requested. Failure to 
comply with the regulations and the terms of an APO is a sanctionable 
violation.
    This five-year (``sunset'') review and notice are in accordance 
with sections 751(c), 752, and 777(i)(1) of the Act.

    Dated: November 29, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-31429 Filed 12-2-99; 8:45 am]
BILLING CODE 3510-DS-P