[Federal Register Volume 74, Number 17 (Wednesday, January 28, 2009)]
[Notices]
[Pages 4913-4916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1827]


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DEPARTMENT OF COMMERCE

International Trade Administration

A-570-930


Circular Welded Austenitic Stainless Pressure Pipe from the 
People's Republic of China: Final Determination of Sales at Less Than 
Fair Value

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

EFFECTIVE DATE: January 28, 2009.
SUMMARY: The Department of Commerce (the Department) has determined 
that circular welded austenitic stainless pressure pipe from the 
People's Republic of China (PRC) is being, or is likely to be, sold in 
the United States at less than fair value (LTFV), as provided in 
section 733 of the Tariff Act of 1930, as amended (the Act). The final 
dumping margins for this investigation are listed in the ``Final 
Determination Margins'' section of this notice.

FOR FURTHER INFORMATION CONTACT: Melissa Blackledge or Howard Smith; 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-3518 and (202) 482-5193, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On September 5, 2008, the Department published in the Federal 
Register its preliminary determination that circular welded austenitic 
stainless pressure pipe from the PRC is being, or is likely to be, sold 
in the United States at LTFV, as provided in the Act. See Circular 
Welded Austenitic Stainless Pressure Pipe from the People's Republic of 
China: Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination, 73 FR 51788 (September 5, 2008) 
(Preliminary Determination). For the Preliminary Determination, the 
Department calculated a 22.03 percent dumping margin for mandatory 
respondent Winner Machinery Enterprise Co., Ltd. (Winner) and assigned 
that dumping margin to the PRC-wide entity and Zhejiang Jiuli Hi-Tech 
Metals Co., Ltd. (Jiuli), a separate rate applicant.
    The Department began its verification of Winner's information on 
September 22, 2008. The verification was scheduled for September 22, 
2008 through September 26, 2008. On September 25, 2008, Winner 
terminated verification, requested that the verifiers not take copies 
of any of the documents that were reviewed or presented at 
verification, and submitted a letter to the Department stating that 
Winner ``hereby withdraws from this antidumping investigation and does 
not wish to further participate.'' See Winner's September 25, 2008 
letter to the Department. The Department documented the events that 
occurred at verification in a memorandum to the file dated October 3, 
2008.
    Petitioners\1\ and Winner submitted case briefs on October 22, 
2008, and rebuttal briefs on October 27, 2008.
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    \1\ Petitioners in this investigation are Bristol Metals, L.P., 
Felker Brothers Corp., Marcegaglia USA, Inc., Outokumpu Stainless 
Pipe Inc., and the United Steel Workers of America (collectively, 
Petitioners).
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    Winner filed submissions containing new factual information on 
October 16, 2008, November 28, 2008, and December 2, 2008. The 
Department rejected Winner's November 28, 2008, and December 2, 2008 
submissions on December 2, 2008 and December 4, 2008, respectively, as 
untimely filed.

[[Page 4914]]

Period of Investigation

    The period of investigation (POI) is July 1, 2007, through December 
31, 2007. This period comprises the two most recently completed fiscal 
quarters as of the month preceding the month in which the petition was 
filed (i.e., January 2008). See 19 CFR 351.204(b)(1).

Scope of the Investigation

    The merchandise covered by this investigation is circular welded 
austenitic stainless pressure pipe not greater than 14 inches in 
outside diameter. This merchandise includes, but is not limited to, the 
American Society for Testing and Materials (ASTM) A-312 or ASTM A-778 
specifications, or comparable domestic or foreign specifications. ASTM 
A-358 products are only included when they are produced to meet ASTM A-
312 or ASTM A-778 specifications, or comparable domestic or foreign 
specifications. Excluded from the scope are: (1) welded stainless 
mechanical tubing, meeting ASTM A-554 or comparable domestic or foreign 
specifications; (2) boiler, heat exchanger, superheater, refining 
furnace, feedwater heater, and condenser tubing, meeting ASTM A-249, 
ASTM A-688 or comparable domestic or foreign specifications; and (3) 
specialized tubing, meeting ASTM A-269, ASTM A-270 or comparable 
domestic or foreign specifications.
    The subject imports are normally classified in subheadings 
7306.40.5005; 7306.40.5040, 7306.40.5062, 7306.40.5064, and 
7306.40.5085 of the Harmonized Tariff Schedule of the United States 
(HTSUS). They may also enter under HTSUS subheadings 7306.40.1010; 
7306.40.1015; 7306.40.5042, 7306.40.5044, 7306.40.5080, and 
7306.40.5090. The HTSUS subheadings are provided for convenience and 
customs purposes only, the written description of the scope of this 
investigation is dispositive.

Changes since the Preliminary Determination

    We have made the following changes to our analysis and the dumping 
margins assigned in the Preliminary Determination:
    1. We considered Winner to be part of the PRC-wide entity, and 
revised the dumping margin that was assigned to the PRC-wide entity as 
total adverse facts available (AFA).
    2. We assigned Jiuli a separate rate based on an average of the 
dumping margins used in the initiation of this investigation.
    For a detailed discussion of the dumping margin assigned to the 
PRC-wide entity as AFA, see ``Issues and Decision Memorandum for the 
Final Determination in the Antidumping Duty Investigation of Circular 
Welded Austenitic Stainless Pressure Pipe from the People's Republic of 
China,'' dated January 21, 2009 (Decision Memorandum) which is hereby 
adopted by this notice. For a detailed discussion of Jiuli's dumping 
margin, see the ``Separate Rates'' section below.

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 addressed in the 
Decision Memorandum. Appendix I to this notice contains a list of the 
issues that are addressed in the Issues and Decision Memorandum. 
Parties can find a complete discussion of the issues and corresponding 
recommendations in this public memorandum, which is on file in the 
Central Records Unit, Room 1117 of the main Commerce building. In 
addition, a complete version of the Decision Memorandum can be accessed 
directly on the Web at http://www.ia.ita.doc.gov/frn. The paper copy 
and electronic version are identical in content.

Non-Market Economy Treatment

    In the Preliminary Determination, the Department considered the PRC 
to be a non-market economy (NME) country. See Preliminary 
Determination, 73 FR at 51789. In accordance with section 771(18)(C)(i) 
of the Act, any determination that a country is an NME country shall 
remain in effect until revoked by the administering authority. See 
Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, 
From the People's Republic of China: Preliminary Results of 2001-2002 
Administrative Review and Partial Rescission of Review, 68 FR 7500 
(February 14, 2003), unchanged in Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, from the People's Republic of China: 
Final Results of 2001-2002 Administrative Review and Partial Rescission 
of Review, 68 FR 70488 (December 18, 2003). No party has commented on 
the Department's classification of the PRC as an NME country. 
Therefore, for the final determination, we continue to consider the PRC 
to be an NME country.

Separate Rates

    In proceedings involving NME countries, the Department begins with 
a rebuttable presumption that all companies within the country are 
subject to government control and, thus, should be assigned a single 
antidumping duty deposit rate. It is the Department's policy to assign 
all exporters of merchandise subject to an investigation in an NME 
country this single rate unless an exporter can demonstrate that it is 
sufficiently independent so as to be entitled to a separate rate. See 
Final Determination of Sales at Less Than Fair Value: Sparklers from 
the People's Republic of China, 56 FR 20588 (May 6, 1991), as amplified 
by Notice of Final Determination of Sales at Less Than Fair Value: 
Silicon Carbide from the People's Republic of China, 59 FR 22585 (May 
2, 1994), and 19 CFR 351.107(d).
    In the Preliminary Determination, we found that Jiuli and Winner 
demonstrated their eligibility for separate-rate status. See 
Preliminary Determination, 73 FR at 51792. Since the publication of the 
Preliminary Determination, no parties commented on the separate rate 
determinations. We continue to find that the evidence placed on the 
record of this investigation by Jiuli demonstrates both a de jure and 
de facto absence of government control with respect to its exports of 
the merchandise under investigation. Thus, we continue to find that 
Jiuli is eligible for separate-rate status. However, as explained 
below, we have determined that it is appropriate to apply total AFA to 
Winner and deny the company a separate rate.
    Normally the dumping margin for separate rate companies is 
determined based on the estimated weighted-average dumping margins 
established for exporters and producers individually investigated, 
excluding de minimis margins or margins based entirely on AFA. See 
section 735(c)(5)(A) of the Act. In the Preliminary Determination we 
assigned Jiuli the dumping margin established for Winner, i.e., 22.03 
percent. See Preliminary Determination, 73 FR at 51792 and 51795. Since 
Winner is no longer receiving a separate rate, this methodology is not 
appropriate. In cases where the estimated weighted-average dumping 
margins for all individually investigated respondents are zero, de 
minimis, or based entirely on AFA, the Department may use any 
reasonable method to assign a rate to the separate rate companies. See 
section 735(c)(5)(B) of the Act. In this case, where there are no 
mandatory respondents receiving a calculated rate, we find that 
applying the simple average of the initiation rates to Jiuli is both 
reasonable and reliable for purposes of establishing a separate rate. 
See Final Determination of Sales at Less Than Fair Value: Sodium

[[Page 4915]]

Hexametaphosphate From the People's Republic of China, 73 FR 6479 
(February 4, 2008) and the accompanying Issues and Decision Memorandum 
at Comment 2. Therefore, the Department will assign a separate rate to 
Jiuli using the average of the initiation margins, pursuant to its 
practice.
    The average initiation margin assigned to Jiuli is based on 
secondary information. According to section 776 (c) of the Act, when 
the Department relies on secondary information, it shall, to the extent 
practicable, corroborate that information. During our pre-initiation 
analysis of the petition, we examined the information used in the 
petition as the basis of export price and normal value (NV) and, where 
appropriate, revised the calculations used to derive the petition 
dumping margins in determining the initiation dumping margins. Also, 
during our pre-initiation analysis, we examined information from 
various independent sources provided either in the petition or, based 
on our requests, in supplements to the petition, which corroborated 
various elements of the export price and NV information. For this final 
determination, we compared the average of the initiation margins to 
Winner's highest CONNUM-specific margin and found that the average of 
the initiation margins does not exceed this margin. No other 
information was available for corroboration purposes. Based on the 
foregoing, we have concluded that the average of the initiation dumping 
margins is reliable and has probative value and, therefore, we consider 
this average dumping margin to be corroborated, to the extent 
practicable.
    Section 776(a)(2) of the Act provides that, if an interested party 
or any other person (A) withholds information that has been requested 
by the administering authority, (B) fails to provide such information 
by the deadlines for the submission of the information or in the form 
and manner requested, subject to subsections (c)(1) and (e) of section 
782, (C) significantly impedes a proceeding under this title, or (D) 
provides such information but the information cannot be verified as 
provided in section 782(i), the administering authority shall, subject 
to section 782(d), use the facts otherwise available in reaching the 
applicable determination. Because Winner withdrew from this proceeding 
during verification, we determine that the use of facts otherwise 
available is warranted with respect to Winner. See the Decision 
Memorandum at Comment 1.
    Section 776(b) of the Act provides that, if the Department finds 
that an interested party ``has failed to cooperate by not acting to the 
best of its ability to comply with a request for information,'' the 
Department may draw an inference that is adverse to the interests of 
that party in selecting information from the petition, the final 
determination from the investigation, a previous administrative review, 
or any information placed on the record. The Statement of 
Administrative Action (SAA) accompanying the Uruguay Round Agreements 
Act, H.R. Doc. 103-316, Vol. 1 (1994) at 870, reflects the Department's 
practice that it may employ an adverse inference ``to ensure that the 
party does not obtain a more favorable result by failing to cooperate 
fully.'' It also instructs the Department to consider, in employing 
adverse inferences, ``the extent to which a party may benefit from its 
own lack of cooperation.'' Id.
    By withdrawing from verification, Winner has failed to cooperate to 
the best of its ability. Therefore, we find it appropriate to use an 
inference that is adverse to Winner's interest in selecting from among 
facts otherwise available. By doing so, we ensure that Winner will not 
obtain a more favorable rate by failing to cooperate. For a complete 
discussion of our analysis, see the Decision Memorandum at Comment 1.
    Moreover, because Winner withdrew from verification and prevented 
the Department from verifying its responses with regard to separate 
rate status, the Department has no basis upon which to grant Winner a 
separate rate. Thus, although Winner remains a mandatory respondent, 
the Department, as AFA, is considering Winner to be part of the PRC-
wide entity.

The PRC-Wide Rate

    In the Preliminary Determination, the Department found that certain 
companies did not respond to our requests for information. See 
Preliminary Determination, 73 FR at 51788. We treated these PRC 
producers/exporters as part of the PRC-wide entity because they did not 
demonstrate that they operate free of government control over their 
export activities. Id. No additional information was placed on the 
record with respect to any of these companies after the Preliminary 
Determination. Moreover, for the reasons noted above, we also consider 
Winner to be part of the PRC-wide entity.
    As noted above, section 776(a)(2) of the Act provides that, if an 
interested party or any other person withholds information that has 
been requested by the administering authority, significantly impedes a 
proceeding under this title, or provides such information but the 
information cannot be verified as provided in section 782(i), the 
administering authority shall, subject to section 782(d), use the facts 
otherwise available in reaching the applicable determination. Since 
companies within the PRC-wide entity withheld information requested by 
the Department, and Winner, which is part of the PRC-wide entity, did 
not allow its information to be verified, pursuant to sections 
776(a)(2)(A), (C), and (D) of the Act, we determine, as in the 
Preliminary Determination, that the use of facts otherwise available is 
appropriate to determine the PRC-wide rate.
    As stated above, section 776(b) of the Act provides that, in 
selecting from among the facts otherwise available, the Department may 
employ an adverse inference if an interested party fails to cooperate 
by not acting to the best of its ability to comply with requests for 
information. See Notice of Final Determination of Sales at Less Than 
Fair Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel 
Products From the Russian Federation, 65 FR 5510, 5518 (February 4, 
2000). See also SAA at 870 (1994). We determine that, because the PRC-
wide entity did not respond to our requests for information, and Winner 
prevented the Department from verifying its information, the PRC-wide 
entity has failed to cooperate to the best of its ability. Therefore, 
the Department finds that, in selecting a dumping margin from among the 
facts otherwise available, an adverse inference is appropriate for the 
PRC-wide entity.
    In this final determination, we have assigned to the PRC-wide 
entity the highest CONNUM-specific calculated dumping margin, i.e., 
55.21 percent. See Decision Memorandum. No corroboration of this rate 
is necessary because we are relying on information obtained in the 
course of this investigation, rather than secondary information.
    Since we begin with the presumption that all companies within an 
NME country are subject to government control, and because only Jiuli 
has overcome that presumption, we are applying the single antidumping 
rate (i.e., the PRC-wide entity rate) identified above to all entries 
of subject merchandise, except for entries from Jiuli. Other than 
Jiuli, none of the other exporters of subject merchandise from the PRC 
demonstrated entitlement to a separate rate. See, e.g., Synthetic 
Indigo From the People's Republic of China:

[[Page 4916]]

Notice of Final Determination of Sales at Less Than Fair Value, 65 FR 
25706 (May 3, 2000).

Combination Rates

    In Circular Welded Austenitic Stainless Pressure Pipe from the 
People's Republic of China: Initiation of Antidumping Duty 
Investigation, 73 FR 10221 (February 26, 2008) (Initiation Notice), the 
Department stated that it would calculate combination rates for 
respondents that are eligible for a separate rate in this 
investigation. See Initiation Notice. This change in practice is 
described in Policy Bulletin 05.1, available at http://ia.ita.doc.gov/. 
Policy Bulletin 05.1, states:
    {w{time} hile continuing the practice of assigning separate rates 
only to exporters, all separate rates that the Department will now 
assign in its NME investigations will be specific to those producers 
that supplied the exporter during the period of investigation. Note, 
however, that one rate is calculated for the exporter and all of the 
producers which supplied subject merchandise to it during the period of 
investigation. This practice applies both to mandatory respondents 
receiving an individually calculated separate rate as well as the pool 
of non-investigated firms receiving the weighted-average of the 
individually calculated rates. This practice is referred to as the 
application of ``combination rates'' because such rates apply to 
specific combinations of exporters and one or more producers. The cash-
deposit rate assigned to an exporter will apply only to merchandise 
both exported by the firm in question and produced by a firm that 
supplied the exporter during the period of investigation.
See Policy Bulletin 05.1, ``Separate Rates Practice and Application of 
Combination Rates in Antidumping Investigations Involving Non-Market 
Economy Countries.''

Final Determination Margins

    We determine that the following percentage dumping margins exist 
for the POI:

------------------------------------------------------------------------
                                                                Margin
                    Manufacturer/Exporter                      (Percent)
------------------------------------------------------------------------
Zhejiang Jiuli Hi-Tech Metals Co., Ltd. Produced by:          10.53[perc
 Zhejiang Jiuli Hi-Tech Metals Co., Ltd.....................         nt]
PRC-Wide Rate...............................................  55.21[perc
                                                                     nt]
------------------------------------------------------------------------

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we will 
instruct U.S. Customs and Border Protection (CBP) to continue to 
suspend liquidation of all entries of circular welded austenitic 
stainless pressure pipe from the PRC, as described in the ``Scope of 
Investigation'' section, entered, or withdrawn from warehouse, for 
consumption on or after September 5, 2008, the date of publication of 
the Preliminary Determination in the Federal Register. We will instruct 
CBP to require a cash deposit or the posting of a bond equal to the 
weighted-average dumping margin amount by which the NV exceeds U.S. 
price, as follows: (1) The rate for the exporter/producer combination 
listed in the chart above will be the rate we have determined in this 
final determination; (2) for all PRC exporters of subject merchandise 
which have not received their own rate, the cash-deposit rate will be 
the PRC-wide entity rate; and (3) for all non-PRC exporters of subject 
merchandise which have not received their own rate, the cash-deposit 
rate will be the rate applicable to the PRC exporter/producer 
combination that supplied that non-PRC exporter. 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 final determination of 
sales at LTFV. As our final determination is affirmative, in accordance 
with section 735(b)(2) of the Act, within 45 days the ITC will 
determine whether the domestic industry in the United States is 
materially injured, or threatened with material injury, by reason of 
imports or sales (or the likelihood of sales) for importation of the 
subject merchandise. 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 CBP to assess, upon further 
instruction by the Department, antidumping duties on all imports of the 
subject merchandise entered, or withdrawn from warehouse, for 
consumption on or after the effective date of the suspension of 
liquidation.

Notification Regarding APO

    This notice also serves as a reminder to the 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. Timely notification of return or 
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 determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: January 21, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretaryfor Import Administration.

Appendix I

List of Issues

Comment 1: Whether, as Adverse Facts Available for the PRC-Wide Entity, 
the Department Should Use the Petition, Initiation, or Preliminary 
Determination Margins, and Whether Those Margins Should be Adjusted 
Using Thai, Instead of Indian, Surrogate Values
[FR Doc. E9-1827 Filed 1-27-09; 8:45 am]
BILLING CODE 3510-DS-S