26570 Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Notices

Hearing requests should specify the

number of participants and provide a

list of the issues to be discussed. Oral

presentations will be limited to issues

raised in the briefs. All memoranda to

which we refer in this notice can be

found in the public reading room,

located in the Central Records Unit,

room B–099 of the main Department of

Commerce building.

The Department will publish the final

results of this administrative review,

including the results of its analysis of

issues raised in any such written briefs

or at a hearing. The Department will

issue final results of this review within

120 days of publication of these

preliminary results.

Upon completion of the final results

of this administrative review, if there is

no change from our preliminary results,

we will instruct the Customs Service to

liquidate all appropriate entries without

regard to antidumping duties.

On April 20, 2000, the International

Trade Commission (ITC) determined

that revoking the existing antidumping

duty orders on electrolytic manganese

dioxide from Greece and Japan would

not be likely to lead to continuation or

recurrence of material injury within a

reasonably foreseeable time. Therefore,

because the order will be revoked as a

result of the ITC’s determination with

an effective date of January 1, 2000, no

deposit requirements will be effective

for shipments of the subject

merchandise entered, or withdrawn

from warehouse, for consumption on or

after the publication date of the final

results of this administrative review.

This notice also serves as a

preliminary reminder to importers of

their responsibility under 19 CFR

351.402(f)(2) to file a certificate

regarding the reimbursement of

antidumping duties prior to liquidation

of the relevant entries during this

review period. Failure to comply with

this requirement could result in the

Secretary’s presumption that

reimbursement of antidumping duties

occurred and the subsequent assessment

of double antidumping duties.

We are issuing and publishing this

determination in accordance with

sections 751(a)(1) and 777(i)(1) of the

Act.

Dated: May 1, 2000.

Troy H. Cribb,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 00–11461 Filed 5–5–00; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–588–806]

Electrolytic Manganese Dioxide From

Japan: Preliminary Results of

Antidumping Duty Administrative

Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of Preliminary Results of

Antidumping Duty Administrative

Review.

SUMMARY: Based on a request by a

Japanese producer, Tosoh Corporation,

the Department of Commerce is

conducting an administrative review of

the antidumping duty order on

electrolytic manganese dioxide from

Japan.

We have preliminarily determined

that sales by Tosoh Corporation have

not been made below normal value. If

these preliminary results are adopted in

our final results of administrative

review, we will instruct Customs to

liquidate without regard to antidumping

duties all entries of EMD from Tosoh

Corporation during the period of review.

We invite interested parties to

comment on these preliminary results.

Parties who submit comments in this

proceeding are requested to submit with

each argument (1) a statement of the

issue and (2) a brief summary of the

argument.

EFFECTIVE DATE: May 8, 2000.

FOR FURTHER INFORMATION CONTACT:

Larry Tabash or Richard Rimlinger,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, Washington, D.C. 20230;

telephone: (202) 482–5047 or (202) 482–

4477, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

Unless otherwise indicated, all

citations to the Tariff Act of 1930, as

amended (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 of Commerce’s (the

Department’s) regulations are to 19 CFR

Part 351 (1999).

Background

On April 17, 1989, the Department

published in the Federal Register (54

FR 15243) the antidumping duty order

on electrolytic manganese dioxide

(EMD) from Japan. On June 30, 1999, the

Department published a notice of

initiation of administrative review in

accordance with 19 CFR 351.213(b). The

Department is conducting this

administrative review in accordance

with section 751 of the Act.

Scope of Review

Imports covered by this review are

sales of EMD from Japan. 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. This merchandise is

currently classifiable under item

number 2820.10.0000 of the

Harmonized Tariff Schedule (HTSUS) of

the United States. The HTSUS number

is provided for convenience and

customs purposes. It is not

determinative of the products subject to

the order. The written product

description remains dispositive.

Period of Review

The period of review (POR) is April

1, 1998, through March 31, 1999.

Product Comparisons

Two product-comparison issues arose

prior to the completion of these

preliminary results. First, the sub-types

of alkaline-grade EMD Tosoh sold in the

home market and a sub-type of alkalinegrade EMD Tosoh sold to the United

States varied by physical characteristics

such as moisture, mesh, and particle

size.

Tosoh provided in its questionnaire

response a product-matching table

identifying the various sub-types of

alkaline-grade EMD it sold in the home

market and to the United States. In its

July 21, 1999, submission, the

respondent stated that the sub-type of

alkaline-grade EMD it sold to the United

States was not sold in the home market

during the POR and that the Department

should match the sub-type sold in the

United States to the closest sub-type of

alkaline-grade EMD sold in the home

market. Kerr-McGee Chemical LLC and

Chemetals Inc. (collectively ‘‘the

petitioners’’) responded that the

Department should disregard the

respondent’s proposed productmatching criteria and base normal value

of EMD exported to the United States on

all sales of alkaline-grade EMD in the

home market because, they argue, it is

the Department’s practice to base

model-matching schemes only on

Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Notices 26571

physical differences that are shown to

be ‘‘commercially meaningful.’’

In the original less-than-fair-value

(LTFV) investigation and previous

administrative reviews of this order, we

grouped EMD into the following three

categories for purposes of modelmatching: (1) Alkaline-grade EMD in

powdered form, (2) zinc-chloride-grade

EMD in powdered form, and (3) EMD in

chip or plate form. See Appendix V in

the Department’s questionnaire dated

June 7, 1999, for a complete description

of the product. Our decision to do this

was based on our analysis of comments

that we received from all interested

parties at the beginning of this

proceeding. The respondent has

provided no information regarding the

commercial significance of the different

sub-types. We are not convinced by the

respondent’s assertion that a more

refined product-matching methodology

is appropriate because the record

indicates that any differences in either

price or cost attributable to physical

differences among the sub-types of

alkaline grade EMD are small.

Therefore, for these preliminary results,

we have continued to match EMD based

on the criteria outlined in the LTFV

investigation.

Second, in an August 27, 1999, and in

subsequent submissions, the petitioners

allege that the respondent should have

reported and accounted for homemarket sales during the POR of EMD

containing both gamma crystalline

structure and other crystalline structure.

The petitioners state that the

Department’s regulations for reporting

the subject merchandise do not make

any distinction between the gamma

crystalline and other gamma crystalline

structure EMD. The respondent argues

that the product covered by this

administrative review is EMD with a

gamma crystalline structure, and that

there is no basis to require Tosoh to

provide information relating to other

crystalline structure manganese dioxide

which, according to Tosoh, is nonsubject merchandise.

Section 771(16) of the Act directs the

Department to compare U.S. sales to

sales in the home market of identical

merchandise prior to making

comparisons to non-identical

merchandise sold in the home market.

As discussed above, under the

definition of comparable merchandise

which has been in place since the

beginning of this proceeding, we

consider all alkaline-grade EMD to be

identical for product-comparison

purposes. Since we were able to

compare U.S. sales to sales of identical

merchandise in the home market, we

have not required Tosoh to report its

home-market sales of non-identical

EMD.

Affiliated Party

On August 27, 1999, the petitioners

alleged that Tosoh and the Japanese

trading company that Tosoh used to

make sales of EMD to the United States

may be affiliated because the two

companies own two other companies

jointly. (The identity of the Japanese

trading company and the two joint

ventures is business proprietary

information and can not be disclosed in

this public notice.) One of these joint

ventures is a producer of EMD in

another country. On September 9, 1999,

and in subsequent submissions, Tosoh

stated that it does not consider itself to

be affiliated with the trading company

in question, and it reported its sale to

the trading company as the U.S.

transaction. Tosoh argues that the

trading company is not legally or

operationally able to exercise any

control or direction over Tosoh, and the

fact that the trading company and Tosoh

participate in the ownership of two

other companies is irrelevant to this

review. Tosoh also argues, citing 19 CFR

351.102(b), that its mere participation in

a joint venture does not support a

finding of affiliation absent a showing

pursuant to the Department’s

regulations that ‘‘the relationship has

the potential to impact decisions

concerning the production, pricing, or

cost of the subject merchandise or

foreign like product.’’ Furthermore,

Tosoh asserts that affiliation between

joint-venture partners can not be found

under section 771(33)(F) of the Act

unless there is sufficient evidence of

‘‘control’’ over decisions concerning the

production, pricing, or cost of the

subject merchandise. Tosoh cites

Certain Cold-Rolled and CorrosionResistant Carbon Steel Flat Products

From Korea, 63 FR 13170, 13185 (March

18, 1998), where the Department found

that two joint-venture partners were not

affiliated under section 771(33)(F) of the

Act because of the absence of evidence

of control.

On November 29, 1999, after

reviewing the information Tosoh

presented in response to our original

and supplemental questionnaires, we

requested that Tosoh report the

‘‘downstream’’ sale information between

the trading company’s U.S. affiliate and

its unaffiliated U.S. customer. See

November 29, 1999, memorandum from

Richard Rimlinger to Laurie Parkhill.

(All memoranda to which we refer in

this notice can be found in the public

reading room, located in the Central

Records Unit, room B–099 of the main

Department of Commerce building.)

Pursuant to section 771(33)(F) of the

Act, affiliation exists where there are

‘‘(t)wo or more persons directly or

indirectly controlling, controlled by, or

under common control with, any

person.’’ However, we recognize the

regulatory guidance indicating that a

control relationship will not establish

affiliation unless the relationship ‘‘has

the potential to impact decisions

concerning the production, pricing, or

cost of the subject merchandise or

foreign like product,’’ 19 CFR 351.102(b)

(emphasis added). Regarding Tosoh’s

control of one of the joint ventures, we

are persuaded that potential control

exists due to the fact that this joint

venture manufactures EMD for sale in a

variety of markets, including the United

States. Thus, Tosoh is in a position that

requires it to coordinate production and

sales activities for its EMD production

facilities. With respect to the trading

company’s control of the same joint

venture, the record indicates that its

wholly owned U.S. subsidiary

negotiates the prices and terms of the

U.S. sales for both Tosoh and the thirdcountry joint venture. Because the

subsidiary negotiates the prices and

terms of the sales for both Tosoh and the

joint venture, we find that the trading

company, through its U.S. subsidiary, is

able or at least has the potential to

impact decisions concerning the

production, pricing, or cost of the

subject merchandise. Accordingly, we

have preliminarily determined that

Tosoh and the trading company

commonly control the joint venture

within the meaning of section

771(33)(F) of the Act and the

Department’s regulations. See

Affiliation Memorandum from Laurie

Parkhill to Richard W. Moreland, dated

May 1, 2000. Accordingly, we conclude

that Tosoh and the trading company are

affiliated and that the appropriate sale

for use in our analysis is the sale by the

U.S. affiliate of the Japanese trading

company to the unaffiliated U.S.

customer. That sale is a constructed

export price (CEP) transaction because it

was made in the United States.

Constructed Export Price

In calculating the price to the United

States, we used CEP as defined in

section 772(b) of the Act. We calculated

CEP based on the delivered price to an

unaffiliated purchaser in the United

States. We made deductions for

movement expenses in accordance with

section 772(c)(2)(A) of the Act.

In accordance with section 772(d)(1)

of the Act and the Statement of

Administrative Action (SAA), H. Doc.

103–316, vol. 1, 822–824 (1994), we

calculated the CEP by deducting selling

26572 Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Notices

expenses associated with economic

activities occurring in the United States,

including direct selling expenses and

indirect selling expenses incurred in the

United States.

With respect to CEP profit, section

772(d)(3) of the Act requires the

Department, in determining CEP, to

identify and deduct from the starting

price in the U.S. market an amount for

profit allocable to selling and furthermanufacturing activities in the United

States. Section 772(f) of the Act

provides the rule for determining the

amount of CEP profit to deduct from the

CEP starting price. Pursuant to

subsection 772(f)(2)(C), we determined

that the best available sources of profit

information are the 1998 financial

statements which the respondent and

the Japanese trading company’s U.S.

affiliate submitted in their responses to

our questionnaires. See Electrolytic

Manganese Dioxide from Japan—Tosoh

Corporation, Analysis Memo dated

April 28, 2000. We made adjustments,

where appropriate, for domestic inland

freight, warehousing expenses,

international freight, and brokerage and

handling in accordance with section

772(c)(2)(A) of the Act. In accordance

with 19 CFR 351.401(i), we used the

invoice date as the date of sale for the

U.S. market. We made deductions for

any movement expenses in accordance

with section 772(c)(2)(A) of the Act.

Finally, in accordance with section

772(d)(1)(B) of the Act, we made an

additional adjustment to CEP. Because

of the business-proprietary nature of the

adjustment, please see our Analysis

Memo.

Normal Value

In order to determine whether there is

a sufficient volume of sales in the home

market to serve as a basis for calculating

normal value, we compare the

respondent’s volume of home-market

sales of the foreign like product to the

volume of U.S. sales of the subject

merchandise in accordance with section

773(a) of the Act. Because the aggregate

volume of home-market sales of the

foreign like product was greater than

five percent of the aggregate volume of

U.S. sales of the subject merchandise,

we determined that the home market

provides a viable basis for calculating

normal value. Therefore, in accordance

with section 773(a)(1)(B)(i) of the Act,

we based normal value on the price at

which the foreign like product was first

sold to unaffiliated customers for

consumption in the exporting country

in the usual commercial quantities and

in the ordinary course of trade. We

matched CEP to normal value at the

same level of trade in the home market

and made no level-of-trade adjustment

(see discussion below).

We compared CEP to the monthly

weighted-average price of sales of the

identical foreign like product. We based

normal value on delivered prices to

unaffiliated purchasers in the home

market. We made adjustments to homemarket price for inland freight,

warehousing expenses, discounts, and

rebates. Home-market prices were based

on packed, delivered prices to the

unaffiliated purchasers in the home

market. Where applicable, we made

adjustments for differences in packing

and for movement expenses in

accordance with sections 773(a)(6)(A)

and (B) of the Act. We also made

adjustments for differences in costs

attributable to differences in

circumstances of sale (COS) in

accordance with section 773(a)(6)(C)(iii)

of the Act and 19 CFR 351.410. With

respect to our comparisons to CEP, we

made COS adjustments by deducting

home-market direct selling expenses

from normal value.

Level of Trade

To the extent practicable, we

determine normal value for sales at the

same level of trade as that in the United

States in accordance with section

773(a)(1)(B) of the Act. The normal

value level of trade is that of the

starting-price sales in the home market.

See 19 CFR 351.412(c)(iii).

To determine whether home-market

sales were at a different level of trade

than that in the United States, we

examined stages in the marketing

process and selling functions along the

chain of distribution between the

producer and the unaffiliated customer.

Tosoh reported two channels of

distribution in the home market. We

examined the differences in selling

functions Tosoh reported in its

responses to our requests for

information. We found that the selling

activities associated with sales to

trading companies/distributors did not

differ from activities associated with

sales to end-users in terms of various

selling activities. For example, there

were no differences between the two

channels in terms of strategic planning/

marketing, production planning/order

evaluation, technical service, and

freight/delivery to customer. Based on

these sales activities and our overall

analysis, we found that the two homemarket channels constitute one level of

trade.

Because Tosoh made CEP sales in the

United States, we identified the level of

trade based on the price after the

deduction of expenses and profit under

section 772(d) of the Act and pursuant

to 19 CFR 351.412(c)(ii). Based on our

analysis, we considered CEP to

constitute a single level of trade.

As a result of our examination of the

record, we found that the respondent

did not provide us with sufficient

information to determine whether there

were significant differences or

similarities between the selling

activities associated with the homemarket level of trade and those

associated with the CEP level of trade.

Moreover, the respondent indicated in

its July 21, 1999, and December 17,

1999, submissions that it was not

requesting a level-of-trade adjustment.

Therefore, we have determined that the

U.S. sale was made at the same level of

trade as the home-market level of trade

and, therefore, no level-of-trade

adjustment was necessary.

Preliminary Results of Review

As a result of our review, we

preliminarily determine a weightedaverage dumping margin of 0.00 percent

for the period April 1, 1998, through

March 31, 1999, for Tosoh.

Any interested party may request a

hearing within 30 days of publication of

this notice. Any hearing, if requested,

will be held 40 days after the date of

publication of this notice, or the first

workday thereafter. Requests should

specify the number of participants and

provide a list of the issues to be

discussed. Oral presentations will be

limited to issues raised in the briefs.

Any hearing, if requested, will be held

three days after the scheduled date for

submission of rebuttal briefs. Issues

raised in hearings will be limited to

those raised in the respective case and

rebuttal briefs. Interested parties may

submit case briefs within 30 days of the

date of publication of this notice.

Rebuttal briefs, which must be limited

to issues raised in the case briefs, may

be filed not later than 35 days after the

date of publication of this notice.

Parties who submit arguments are

requested to submit with the arguments

(1) a table of contents, (2) a statement of

the issue, (3) a list of authorities used,

and (4) an executive summary of issues.

Executive summaries should be limited

to five pages total, including footnotes.

The Department will publish the final

results of this administrative review,

including the results of its analysis of

issues raised in any such written briefs

or hearing. The Department will issue

final results of this review within 120

days of publication of these preliminary

results.

Upon completion of the final results

of this administrative review, if there is

no change from our preliminary results,

we will instruct the Customs Service to

Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Notices 26573

liquidate all appropriate entries without

regard to antidumping duties.

On April 20, 2000, the International

Trade Commission (ITC) determined

that revoking the existing antidumping

duty orders on EMD from Greece and

Japan would not be likely to lead to

continuation or recurrence of material

injury within a reasonably foreseeable

time. Therefore, because the order will

be revoked as a result of the ITC’s

determination with an effective date of

January 1, 2000, no deposit

requirements will be effective for

shipments of the subject merchandise

entered, or withdrawn from warehouse,

for consumption on or after the

publication date of the final results of

this administrative review.

This notice also serves as a

preliminary reminder to importers of

their responsibility under 19 CFR

351.402(f)(2) to file a certificate

regarding the reimbursement of

antidumping duties prior to liquidation

of the relevant entries during this

review period. Failure to comply with

this requirement could result in the

Secretary’s presumption that

reimbursement of antidumping duties

occurred and the subsequent assessment

of double antidumping duties.

We are issuing and publishing this

determination in accordance with

sections 751(a)(1) and 777(i)(1) of the

Act.

Dated: May 1, 2000.

Troy H. Cribb,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 00–11462 Filed 5–5–00; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–570–803]

Heavy Forged Hand Tools from the

People’s Republic of China; Amended

Final Results of Antidumping Duty

Administrative Reviews in Accordance

With Court Decision

AGENCY: Import Administration,

International Trade Administration,

U.S. Department of Commerce.

ACTION: Notice of Amended Final

Results of Antidumping Duty

Administrative Review in accordance

with Court Decision.

SUMMARY: On February 8, 2000, the

Court of International Trade (CIT)

affirmed the remand determination of

the Department of Commerce (the

Department) arising from the

administrative reviews of the

antidumping duty orders on heavy

forged hand tools (HFHTs) from the

People’s Republic of China (PRC). See

Fujian Machinery & Equipment Import

& Export Corp., et. al v. United States,

CIT , Slip Op. 00–14, (February 8,

2000). No party appealed this decision.

As there is now a final and conclusive

court decision in this segment, we are

amending the final results of reviews in

this matter and will instruct the U.S.

Customs Service to liquidate entries

subject to these amended final results.

EFFECTIVE DATE: May 8, 2000.

FOR FURTHER INFORMATION CONTACT:

Michael Strollo or Maureen Flannery,

Antidumping/Countervailing Duty

Enforcement, Import Administration,

International Trade Administration,

U.S. Department of Commerce, 14th

Street and Constitution Avenue, N.W.,

Washington D.C. 20230; telephone (202)

482–5255 and (202) 482–3020,

respectively.

SUPPLEMENTARY INFORMATION:

Background

On February 1, 1991, the Department

issued antidumping duty orders on

HFHTs from the PRC. See Antidumping

Duty Orders: Heavy Forged Hand Tools,

Finished or Unfinished, With or Without

Handles from the People’s Republic of

China, 56 FR 6622 (February 19, 1991)

(Antidumping Duty Orders). On April 4,

1996, the Department published its final

results of the third administrative

review of HFHTs for two PRC exporters,

Fujian Machinery and Equipment

Import and Export Corporation (FMEC)

and Shandong Machinery Import and

Export Corporation (SMC). See Heavy

Forged Hand Tools, Finished or

Unfinished, With or Without Handles,

from the People’s Republic of China;

Final Results of Antidumping

Administrative Review, 61 FR 15028

(April 4, 1996). On May 14, 1996, the

Department published its amended final

results of the third administrative

review of HFHTs. See Heavy Forged

Hand Tools, Finished or Unfinished,

With or Without Handles, From the

People’s Republic of China; Amendment

of Final Results of Antidumping Duty

Administrative Review, 61 FR 24285

(May 14, 1996).

On September 7, 1999, the

Department filed with the CIT a consent

motion for voluntary remand so that the

Department may exclude statistics used

as surrogate values that were found to

be aberrational by the Department in the

Final Results of Redetermination

Pursuant to Court Remand relating to

the second administrative review. The

CIT granted the motion and remanded

to the Department on September 15,

1999.

On November 15, 1999, the

Department filed its final results

pursuant to remand. See Final Results of

Redetermination Pursuant to Court

Remand, Fujian Machinery and

Equipment Import & Export Corp., et. al

v. United States (November 15, 1999).

On February 8, 2000, the CIT upheld the

Department’s redetermination on

remand. Fujian Machinery & Equipment

Import & Export Corp., Shandong

Machinery Import & Export Corp., et al.

v. United States, CIT , Slip. Op 00–

14 (February 8, 2000). Neither party

appealed the CIT’s decision.

There is now a final and conclusive

court decision in this action; therefore,

we are amending our final results of

review for the period February 1, 1993

through January 31, 1994. We

recalculated margins on each product

category for FMEC and SMC. The

revised weighted average margins are as

follows:

Manufacturer/Exporter Margin

(percent)

Fujian Machinery & Equipment

Import & Export Corp.:

Axes/Adzes ............................ 5.68

Bars/Wedges ......................... 16.14

Hammers/Sledges ................. 8.90

Shandong Machinery Import &

Export Corp.:

Bars/Wedges ......................... 29.84

Hammers/Sledges ................. 10.02

Picks/Mattocks ....................... 52.60

Accordingly, the Department will

determine, and the Customs Service will

assess, antidumping duties on all entries

of subject merchandise from FMEC and

SMC in accordance with these amended

final results. For assessment purposes,

we have calculated importer-specific

duty assessment rates for each class or

kind of merchandise based on the ratio

of the total amount of antidumping

duties calculated for the examined sales

during the period of review (POR) to the

total quantity of sales examined during

the POR. The Department will issue

appraisement instructions directly to

Customs. The above rates will not affect

FMEC or SMC’s cash deposit rates

currently in effect, which continue to be

based on the margins found to exist in

the most recently completed review.

This notice is published in

accordance with section 751(a)(1) of the

Tariff Act (19 U.S.C. 1675(a)(1)) and 19

CFR 351.221.