67 FR 40914, June 14, 2002
                                                            A-583-830
                                                Administrative Review
                                                       5/1/00-4/30/01
                                                      Public Document
                                                       IA/III/IX: SMB
MEMORANDUM TO: Faryar Shirzad
               Assistant Secretary 
                 for Import Administration

FROM:          Joseph A. Spetrini
               Deputy Assistant Secretary
               AD/CVD Enforcement Group III

SUBJECT:       Issues and Decision Memorandum for the Final Results of
               Antidumping Administrative Review of Stainless Steel 
               Plate in Coils from Taiwan 

SUMMARY: 

We have analyzed the case brief of petitioners (1) in the preliminary
determination on the Administrative Review of Stainless Steel Plate in
Coils ("SSPC") from Taiwan. As a result of our analysis, we have made no
changes from the Preliminary Results and Rescission in Part of Antidumping
Duty Administrative Review of Stainless Steel Plate in Coils from Taiwan,
67 FR 5789 (February 7, 2002) ("Preliminary Determination"). Respondents
in this case, Yieh United Steel Corporation ("YUSCO"), and Ta Chen
Stainless Pipe Co., Ltd. ("Ta Chen"), did not submit case or rebuttal
briefs. Below is a complete list of the issues in this administrative
review for which we have received comment. 

We recommend that you approve the positions we have developed in the
"Discussion of the Issues" section of this Issues and Decision Memorandum.
Below is the complete list of the issues in this review:

GENERAL COMMENTS

Adverse Facts Available for YUSCO and YUSCO's Subject Merchandise 
Total Adverse Facts Available Rate of 10.20 percent Ad Valorem to Ta
Chen's Subject Merchandise 

BACKGROUND

On February 7, 2002, the Department of Commerce ("the Department")
published the preliminary results of its administrative review in the
antidumping duty order on stainless steel plate in coils from Taiwan. See
Preliminary Determination. The merchandise covered by this order is SSPC
as described in the "Scope of Review" section of the Federal Register
notice. The period of review ("POR") is May 1, 2000 through April 30,
2001. We invited parties to comment on our preliminary results. We
received written comments from petitioners on March 11, 2002. Respondents
in this case have not responded.

DISCUSSION OF THE ISSUES

Comment 1: Request of Total Adverse Facts Available Rate for YUSCO's
Subject Merchandise of 10.20 Percent Ad Valorem

Petitioners contend that they have requested this review for the purpose
of determining, as accurately as possible, the extent to which YUSCO's
subject merchandise was dumped by both YUSCO and Ta Chen. Petitioners
argue that the objective of the antidumping law is to determine current
dumping margins as accurately as possible. See D&L Supply Co., v. United
States, 113 F.3d 1220, 1223 (Fed. Cir. 1997); See also Rhone Poulenc,
Inc., v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990), ("Rhone
Poulenc"). Petitioners, therefore, argue that based on the facts available
finding in the Preliminary Determination, YUSCO and YUSCO's subject
merchandise should be assigned a total adverse facts available rate of
10.20 percent ad valorem.

Petitioners contend that in assigning the current 8.02 percent ad valorem
rate, the Department wrongly failed to consider Ta Chen's 2.18 percent
dumping margin as determined in the original less than fair value
investigation. See Notification of Final Determination of Sales at Less
Than Fair Value: Stainless Steel Plate in Coils From Taiwan, 64 Fed. Reg.
15493, 15494, 15507 (March 31, 1999) ("SSPC LTFV Final"). Petitioners
argue that, because middleman dumping by Ta Chen was determined during the
original investigation, the Department has no reason to exclude Ta Chen's
margin from YUSCO's rate. See SSPC LTFV Final. Thus, 

petitioners argue, Ta Chen's decision not to participate in this review,
along with the fact that YUSCO has continued to allegedly dump subject
merchandise during the second POR, allows the Department to make an
adverse inference, presuming the existence of middleman dumping on the
part of Ta Chen. See DeCecco DeFilippo Fara S. Martino v. United States,
216 F.3d 1027, 1032 (Fed. Cir. 2000) ("DeCecco"). Petitioners further
argue that to make an adverse inference of middleman dumping by Ta Chen
and assign a 10.20 percent ad valorem rate would achieve the intent
established by Congress of determining the most current and accurate
dumping margin possible based on the available facts.

Furthermore, petitioners contend that a 10.20 percent ad valorem rate
would not be an undue burden or a penalty on YUSCO, as the focus of the
antidumping law is to remedy the full measure of dumping. In the instant
case, petitioners assert that YUSCO's subject merchandise benefitted from
the combined dumping of both Respondents. Petitioners maintain that
applying the 8.02% rate would understate YUSCO's dumping of the subject
merchandise. Therefore, petitioners argue, the 10.20 percent ad valorem
rate would remedy the full measure of dumping without punishing YUSCO.

Department's Position: We disagree with petitioners. There is no
information on the record that a middleman made entries of subject
merchandise from Taiwan during the POR, and no evidence that YUSCO, in
particular, made sales of subject merchandise destined for the United
States through Ta Chen. 

Ta Chen informed the Department that re-sales it made in the United
States during the POR were of stainless steel plate in coils which entered
the United States prior to the POR. See letter from Ta Chen to the
Department, dated August 20, 2001. The Department subsequently contacted
Customs, had Customs do an inquiry into Ta Chen's exports to the United
States during the POR, and reviewed Customs data. All of the evidence on
the record appears to support Ta Chen's claim of no exports of subject
merchandise during the POR to the United States. 

The middleman rate calculated during the less than fair value
investigation measured dumping from both the producer and middleman. As
adverse facts available ("AFA"), it would be reasonable to use an adverse
number which, from the record, reflected YUSCO's exports directly to the
United States, but illogical to calculate a margin which combined the
dumping behavior of two unaffiliated parties. It would therefore be
unreasonable for us to calculate a margin for YUSCO, a company which we
believe to have only exported directly to the United States during the POR
without the use of a middleman, using a number derived from the
measurement of dumping by both YUSCO and Ta Chen. 

We disagree with petitioners' claims regarding a presumption of middleman
dumping by Ta Chen. A finding of middleman dumping in a previous segment
of the proceeding does not constitute sufficient grounds to presume
middleman dumping is occurring with respect to entries for which there is
no evidence of middleman involvement. Neither the Act nor the legislative
history instructs the Department to presume middleman dumping in light of
no entries of subject merchandise during the POR from the middleman. As
noted above, record evidence in this proceeding leads the Department to
conclude that no middleman dumping took place during the POR. 

Record evidence indicates that Ta Chen had no entries of subject
merchandise during the POR, regardless of the fact that Department found
middleman dumping during the LTFV investigation. It is the Department's
normal practice in an administrative review to only review a
producer/exporter if that producer/exporter had entries during the POR.
See Notice of Rescission of Antidumping Duty Administrative Review, Carbon
Steel Wire Rope from Mexico, 65 FR 58261 (September 28, 2000) ("Rope from
Mexico"). Indeed such an approach is logical, given that the Department
generally will only instruct Customs to assess dumping duties on entries
during the POR. See Preamble to Antidumping Duties; Countervailing Duties;
Final Rule, 62 FR 27295, 27314 ( ".. based on the results of each review,
the Department will generally assess duties on entries made during the
review period and will use assessment rates to effect those assessments)
("Preamble"); 19 CFR 351.212(b)(1).

Furthermore, we disagree with petitioners that it would not be an "undue
burden" on YUSCO to apply a middleman dumping margin rate as AFA. As we
discussed in the Department's Remand Redetermination from the
investigation, it would be an "undue burden" on a producer to apply a
middleman dumping margin to a producer's direct exports to the United
States, when that producer had no reason to know or suspect that the
middleman was dumping its merchandise in the United States. See Final
Results of Redetermination Pursuant to Court Remand, Allegheny Ludlum
Corp. v. United States, dated November 28, 2001 ("Remand Determination")
at 25. In the Remand Determination, we applied combination rates to all of
YUSCO's direct exports to the United States because it had no reason to
know or suspect that Ta Chen was dumping its merchandise. See id. Thus,
for all subject merchandise sold directly to the United States by YUSCO,
we used a calculated figure which did not include the middleman dumping
margin. See id. at 26. In this review, we have found that YUSCO sold its
merchandise directly to the United States. Therefore, we find it
unreasonable to apply the middleman margin to YUSCO as AFA. 

In the instant case, we have found that Ta Chen has not participated in
the commercial transactions for subject merchandise exported to the United
States during the POR. Accordingly, we continue to conclude that it is
neither appropriate, nor reasonable, to use the margin which was
calculated using Ta Chen's contributed dumping as facts available.
Therefore, we will not make a finding of middleman dumping in this review
with respect to YUSCO's sales, and, as adverse facts available, we have
applied the rate of 8.02 percent.

Comment 2: The Department should impose a 10.20 percent ad valorem rate
on Ta Chen's sales and resales of subject merchandise rather than rescind
this review

Petitioners argue that because Ta Chen has decided not to participate in
this review, it has not met an affirmative burden of linking its U.S.
resales during the POR to entries made prior to suspension of liquidation
which occurred on November 4, 1998. Therefore, petitioners contend that Ta
Chen should receive a 10.20 percent ad valorem rate for their U.S. sales
and resales of subject merchandise. In the alternative, petitioners argue
that even if Ta Chen can link its U.S. resales made during the POR to
entries made prior to the suspension of liquidation, the Department should
not rescind this review because Ta Chen has failed to link its U.S.
resales during the second POR to entries made prior to the date of
suspension of liquidation. 

Petitioners assert that it is Ta Chen's burden, not the Department's, to
support its certification with affirmative evidence of the non-existence
of exports. Petitioners argue that Ta Chen has the detailed information
necessary to demonstrate a link between its resales and pre-suspension
entries and by failing to provide this information to the Department, Ta
Chen has failed to certify the existence of any linkage. 

Petitioners claim that absent any further information, the Department
must presume that Ta Chen has continued to dump YUSCO's subject
merchandise. Petitioners also question the Department's Customs inquiry as
insufficient. Petitioners state that any spot-checking of Custom Service
documents by the Department to discover Ta Chen sales fails to support Ta
Chen's certification, because such spot-checking cannot provide the
necessary detailed information to make a calculation. Therefore,
petitioners argue that Ta Chen should receive a total AFA rate of 10.20
percent ad valorem on its subject merchandise.

In the alternative, petitioners argue that this review should not be
rescinded even if Ta Chen can link its U.S. resales during the POR to
prior entries, because the Department's interpretation of the statutory
term "subject merchandise" is incorrect and unreasonable. Under that
interpretation, resales of subject merchandise linked to pre-suspension
entries are not considered subject merchandise. Petitioners claim the
Department may review these resales absent any entries in the POR, and
that absent such POR entries it can still calculate a cash deposit rate,
applicable to future entries. 

Petitioners argue that section 752(a)(1) of the Act, which requires the
Commission to determine whether the revocation or suspension of an order
would likely lead to the continuation or recurrence of material injury,
does not expressly prevent the Department from carrying out a review if
there are no entries during the specified POR. In addition, petitioners
argue that section 771(25) of the Act, which defines the term subject
merchandise as the class of kind of merchandise covered by the scope of
the review, does not provide that imported goods are not subject
merchandise if resold during the POR. 

Petitioners contend that it is the objective of the antidumping law that
the dumping margin be calculated as accurately as possible. See Rhone
Poulenc, 899 F.2d at 1191. To this end, petitioners argue, Congress
provided for annual reviews in order to update dumping margins and to
prevent subject merchandise from entering the United States without a cash
deposit of the estimated dumping duties. Petitioners contend, therefore,
that the Department's policy of rescission fails to uphold Congress'
intent of calculating current dumping margins as accurately as possible.
Thus, petitioners contend that because they have requested this review to
update YUSCO and Ta Chen's dumping margin and, because there were U.S.
resales by Ta Chen during the second POR upon which a new, more accurate
margin could be calculated, petitioners are entitled to a second annual
administrative review, even if there were no new entries by Ta Chen during
this POR.

Department's Position: We disagree with petitioners. We have determined
that Ta Chen had no entries of subject merchandise during the POR;
therefore, rescission as to Ta Chen in the present case is warranted.
Under the Department's regulations, "the Department may rescind an
administrative review, in whole or only with respect to a particular
exporter or producer, if the Secretary concludes, that during the period
covered by the review, there were no entries, exports, or sales of subject
merchandise." See section 351.213(d)(3) of the Department's regulations.
The Department has interpreted this provision through its practice to
permit the rescission of the review if there were no entries during the
POR as discussed above. See Rope from Mexico, 65 FR 58261; see also See
Stainless Steel Sheet and Strip From the Republic of Korea; Final Results
and Partial Rescission of Antidumping Duty Administrative Review, 66 FR
64950 (December 17, 2001). As explained thoroughly in the Department's
Position to Comment 1, Ta Chen has certified that of its resales by its
U.S. affiliate, Ta Chen International ("TCI"), during the POR, all resold
merchandise entered the United States before the POR. See Letter from Ta
Chen to the Department dated August 20, 2001. In addition, the
Department's inquiry of Customs information indicates that such
merchandise did not enter the United States during the POR. Accordingly,
in the current review, the Department is satisfied that the evidence on
the record indicates that there were no entries of subject merchandise by
Ta Chen during the POR. Therefore, consistent with our regulations,
practice and the evidence on the record, we have rescinded this review for
Ta Chen. 

Petitioners argue that the Department's efforts to determine the
existence or nonexistence of Ta Chen's entries during the POR were
insufficient. Petitioners argue that the Department must require Ta Chen
to affirmatively link its resales during the POR with its entries of
subject merchandise.

The Department presumes from its findings in the first administrative
review that Ta Chen's merchandise must have entered the United States
prior to suspension of liquidation. See Stainless Steel Plate in Coils
From Taiwan: Final Rescission of Antidumping Duty Administrative Review,
66 FR 18610, 18612 (April 10, 2001) ("SSPC 1st Rescission") (finding Ta
Chen had no exports of subject merchandise during the first POR). Nowhere
in the statute or regulations is the Department instructed to always
require a respondent to affirmatively demonstrate proof of entry of its
resales in order to obtain a rescission, when the substantial evidence on
the record indicates no entries of the subject merchandise entered during
the POR. However, the Department has affirmatively required respondents to
link entries outside the POR with sales during the POR when it was
uncertain on the record if sales in question involved entries made prior
to suspension of liquidation or during the POR. See Certain Stainless Wire
Rods From France: Final Results of Antidumping Duty Administrative Review,
61 FR 47874, 47875 (September 11, 1996) ("Wire Rod from France");
Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts
Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden,
and the United Kingdom, 63 FR 33320, (June 18, 1998) (AFBs); Preamble at
27314. For example, in AFBs, there were multiple entries of merchandise by
the respondents both prior to and during the POR, and the Department was
uncertain if any entries that came into the United States were
specifically subject to the order under review. Thus, it required an
affirmative linkage by the respondents of sales in the POR to entries
outside of the POR. See id. 

Unlike the circumstances in Wire Rod from France and AFBs, there was
little uncertainty as to the lack of entries of subject merchandise by Ta
Chen during the POR. As described above, the Department has reviewed the
record and conducted a Customs inquiry. Based on the information on the
record we are satisfied that Ta Chen had no entries of subject merchandise
during the POR and, in keeping with Department practice, we are rescinding
this administrative review with respect to Ta Chen.

With respect to petitioners' argument concerning the definition of
"subject merchandise" under the Act, the Department has previously
addressed this issue in the first administrative review. See SSPC 1st
Rescission, 66 FR18612. In short, pursuant to the statutory definition of
subject merchandise, if merchandise is not within the scope of the order
(or, as the case may be, the investigation, review, or suspension
agreement), it is not subject merchandise. See section 771(25) of the Act.
While we do not disagree with petitioners that the sales in question are
of merchandise physically meeting the scope of the order, we believe that
the statute's reference to "an investigation, a review, a suspension
agreement, an order" necessarily limits the definition to merchandise
which entered the United States after suspension of liquidation. If the
merchandise resold by Ta Chen during this POR entered the United States
before November 4, 1998, the date of suspension of liquidation, it is not
subject to the order and therefore is not subject merchandise under this
administrative review. 

While we do not believe petitioners are arguing that YUSCO's merchandise
resold by Ta Chen during the POR may be assessed absent evidence of
entries during the POR, it appears they are arguing that we may calculate
a new cash deposit rate based on such sales information. Again, as we
discussed in SSPC 1st Rescission, as well as in Comment 30 of the first
administrative review of stainless steel sheet and strip from Taiwan, it
would be inappropriate to calculate a cash deposit rate based upon sales
of non-subject merchandise. See Stainless Steel Sheet and Strip From
Taiwan; Final Results and Partial Rescission of Antidumping Duty
Administrative Review, 67 FR 6682 (February 13, 2002) ("SSSS Rescission")
and accompanying Issues and Decision Memorandum at Comment 30 ("SSSS
Issues and Decision Memo"). Indeed, as we noted in SSSS Rescission, in
this review, it would be "doubly inappropriate" to make such a calculation
based upon sales of non-subject merchandise, in light of the fact that in
the investigation, we already calculated a cash deposit rate base upon
sales of actual subject merchandise during the investigation. See SSSS
Issues and Decision Memorandum at Comment 30. As the Department stated in
French Wire Rod: "(s)ales of non-subject merchandise are not an
appropriate basis for the Department to estimate the duties that will be
due on future entries of subject merchandise." See Wire Rod from France,
61 FR at 47878.

To the extent petitioners question the validity of a Customs' inquiry,
the Department has relied on Customs' findings of no entries of subject
merchandise and a certified statement by respondent that there were no
entries of subject merchandise to be sufficient to warrant a rescission of
a review in past administrative reviews. See Certain Fresh Cut Flowers
from Columbia: Final Results and Partial Rescission of Antidumping Duty
Administrative Review, 62 FR 53287, 53288 (October 14, 1997) (noting that
the Department rescinded its review of 40 firms based on a U.S. Customs
query by the Department, confirming that there were no shipments of
subject merchandise by those firms); Notice of Final Results and Partial
Rescission of Antidumping Duty Administrative Review: Certain Welded
Carbon Steel Pipe and Tube from Turkey, 63 FR 35190, 35191 (June 29, 1998)
(noting that the Department allowed rescission for two companies based on
a U.S. Customs query by the Department, confirming that there were no
shipments of subject merchandise by those firms); SSPC 1st Rescission, 66
FR18612 (noting that the Department found that a certified statement by
the respondent that its resales of subject merchandise entered before the
POR and a subsequent Customs query finding no entries during the POR
satisfied the requirement for rescinding the review). It is reasonable to
rely on Customs' finding in this case as well. 

In the instant case, the rescission of the administrative review with
respect to Ta Chen is warranted. Ta Chen provided a certified statement
that it had no shipments of subject merchandise during the POR and a
subsequent Customs query confirmed that Ta Chen had no entries during the
POR. Based on these facts, a rescission is warranted of this
administrative review with respect to Ta Chen. 

RECOMMENDATION:

Based on our analysis of the comments received, we recommend adopting all
of the above positions. If accepted, we will publish the final results of
the review and the final weighted-average dumping margin in the Federal
Register.

AGREE___________ DISAGREE___________

________________________

Faryar Shirzad
Assistant Secretary
  for Import Administration

_________________________
Date

__________________________________________________________________________
footnote:

1. Petitioners in this case are Allegheny Ludlum, AK Steel Corporation,
Butler Armco Independent Union, J&L Specialty Steel, Inc., North American
Stainless, United Steelworkers of America, AFL-CIO/CLC, and Zanesville
Armco Independent Organization.