[Federal Register Volume 72, Number 59 (Wednesday, March 28, 2007)]
[Notices]
[Pages 14522-14525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5690]


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DEPARTMENT OF COMMERCE

International Trade Administration

A-469-805


Stainless Steel Bar from Spain: Preliminary Results of 
Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: In response to a request from an interested party, the 
Department of Commerce (the Department) is conducting an administrative 
review of the antidumping duty order on stainless steel bar (SSB) from 
Spain. The review covers one manufacturer/exporter, Sidenor Industrial 
SL (Sidenor). The period of review is March 1, 2005, through February 
28, 2006.
    We have preliminarily determined that Sidenor has made sales below 
normal value. If these preliminary results are adopted in our final 
results of administrative review, we will instruct U.S. Customs and 
Border Protection (CBP) to assess antidumping duties on all appropriate 
entries.
    We invite interested parties to comment on these preliminary 
results. Parties who submit comments in this review are requested to 
submit with each argument (1) a statement of the issue and (2) a brief 
summary of the argument.

EFFECTIVE DATE: March 28, 2007

FOR FURTHER INFORMATION: Dmitry Vladamirov or Minoo Hatten, AD/CVD 
Operations, Office 5, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
0665 and (202) 482-1690, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On March 2, 1995, the Department published in the Federal Register 
the antidumping duty order on SSB from Spain. See Amended Final 
Determination and Antidumping Duty Order: Stainless Steel Bar From 
Spain, 60 FR 11656 (March 2, 1995) (SSB Order). On March 2, 2006, the 
Department published in the Federal Register a notice of opportunity to 
request an administrative review of the antidumping duty order on SSB 
from Spain. See Antidumping or Countervailing Duty Order, Finding, or 
Suspended Investigation; Opportunity to Request Administrative Review, 
71 FR 10642 (March 2, 2006). On March 29, 2006, Sidenor requested that 
the Department conduct a review of its U.S. sales made during the 
period of review. On April 28, 2006, in accordance with 19 CFR 
351.213(b), we published a notice of initiation of administrative 
review of this order. See Initiation of Antidumping and Countervailing 
Duty Administrative Reviews, 71 FR 25145 (April 28, 2006). On December 
1, 2006, we published a notice announcing the extension of the due date 
for the completion of these preliminary results of review from December 
1, 2006, to February 13, 2007. See Extension of Time Limit for 
Preliminary Results of Antidumping Duty Administrative Review, 71 FR 
69550 (December 1, 2006) (Extension Notice).\1\ On February 6, 2007, we 
published a notice announcing a second extension of the due date for 
the completion of these preliminary results of review from February 13, 
2007, to March 22, 2007. See Extension of Time Limit for Preliminary 
Results of Antidumping Duty Administrative Review, 72 FR 5419 (February 
6, 2007).
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    \1\ In the Extension Notice we stated inadvertently that we were 
extending the time period for issuing the preliminary results of 
this review to February 13, 2006. On December 15, 2006, we published 
a correction notice announcing the extension of the due date for the 
completion of these preliminary results of review to February 13, 
2007. See Correction to Notice of Extension of Time Limit for 
Preliminary Results of Antidumping Duty Administrative Review, 71 FR 
75503 (December 15, 2006).
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    The Department is conducting this administrative review in 
accordance with section 751 of the Tariff Act of 1930, as amended (the 
Act).

Scope of the Order

    The product covered by this order is SSB. SSB means articles of 
stainless steel in straight lengths that have been either hot-rolled, 
forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or 
ground, having a uniform solid cross section along their whole length 
in the shape of circles, segments of circles, ovals, rectangles 
(including squares), triangles, hexagons, octagons or other convex 
polygons. SSB includes cold-finished SSBs that are turned or ground in 
straight lengths, whether produced from hot-rolled bar or from 
straightened and cut rod or wire, and reinforcing bars that have 
indentations, ribs, grooves, or other deformations produced during the 
rolling process.
    Except as specified above, the term does not include stainless 
steel semi-finished products, cut length flat-rolled products (i.e., 
cut length rolled products which if less than 4.75 mm in thickness have 
a width measuring at least 10 times the thickness, or if 4.75 mm or 
more in thickness having a width which exceeds 150 mm and measures at 
least twice the thickness), wire (i.e., cold-formed products in coils, 
of any uniform solid cross section along their whole length, which do 
not conform to the definition of flat-rolled products), and angles, 
shapes and sections.
    The SSB subject to this order is currently classifiable under 
subheadings 7222.10.0005, 7222.10.0050, 7222.20.0005, 7222.20.0045, 
7222.20.0075, and 7222.30.0000 of the Harmonized Tariff Schedule of the 
United States (HTSUS). Although the HTSUS subheadings are provided for 
convenience and customs purposes, our written description of the scope 
of this order is dispositive.

Use of Adverse Facts Available

    Section 776(a)(2) of the Act provides that, if an interested party 
withholds information requested by the administering authority, fails 
to provide such information by the deadlines for submission of the 
information and in the form or manner requested, subject to subsections 
(c)(1) and (e) of section 782 of the Act, 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 use, subject to section 782(d) of the 
Act, facts otherwise available in reaching the applicable 
determination. Section 782(d) of the Act provides that, if the 
administering authority determines that a response to a request for 
information does not comply with the request, the administering 
authority shall promptly inform the responding party and provide an 
opportunity to remedy the deficient submission. Section 782(e) of the 
Act further states that the Department shall not decline to consider 
submitted information if all of the following requirements are met: (1) 
the information is submitted by the established deadline; (2) the 
information can be verified; (3) the information is not so incomplete 
that it cannot serve as a reliable basis for reaching the applicable 
determination; (4) the interested party has demonstrated that it acted 
to the best of its ability; and (5) the information can be used without 
undue difficulties.
    The cost-of-production (COP) questionnaire responses submitted by

[[Page 14523]]

Sidenor are incomplete and cannot be used to calculate an accurate 
dumping margin for Sidenor. The original antidumping questionnaire was 
issued on July 31, 2006. Since the issuance of the initial 
questionnaire to Sidenor, we have granted numerous extensions up to and 
including the submission of the third supplemental questionnaire 
response, which we received on January 24, 2007. Over a six-month 
period, we carefully and repeatedly identified numerous deficiencies 
and errors for which we needed more complete information in order to 
understand the reported information. Throughout this process, Sidenor 
demonstrated a consistent pattern of non-responsiveness, providing 
confusing, incomplete, and inconsistent information. As a result of 
these serious deficiencies, we are unable to determine adequately 
whether the COP information in its responses reflects reasonably and 
accurately the costs incurred by Sidenor to produce the merchandise 
under consideration. Without this information, we cannot calculate an 
accurate dumping margin for this company.
    In accordance with section 776 of the Act, the Department 
preliminarily determines that the use of total adverse facts available 
(AFA) is warranted with respect to Sidenor. As discussed in the 
Memorandum from Mark Todd to Neal Halper, entitled ``Use of Adverse 
Facts Available for the Preliminary Determination,'' dated March 22, 
2007 (AFA Memo), Sidenor did not provide the following information 
which we requested: (1) a consistent explanation for its product-cost 
calculation methodology that demonstrates the link between its reported 
costs and its normal books and records; (2) various reconciliation 
schedules (i.e., quantity reconciliation, direct material cost 
reconciliation, and conversion cost reconciliation); and (3) requested 
supporting cost documentation from its normal books and records (i.e., 
job cost sheets and cost of sales information). Without this 
information, the Department is unable to determine whether Sidenor 
accounted for all of its production costs relating to the merchandise 
under consideration. Thus, the Department is unable to rely on 
Sidenor's submitted costs. Because Sidenor has not provided the 
necessary information on the record, the use of facts available for the 
preliminary results of review is warranted pursuant to section 
776(a)(1) of the Act. Furthermore, because Sidenor has withheld 
requested information, failed to provide such information in the form 
and manner required, impeded this review, and reported information that 
could not be verified, the use of facts available for the preliminary 
results is warranted pursuant to sections 776(a) (2) (A), (B), (C), and 
(D) of the Act. For further discussion, please refer to the AFA Memo.
    Section 776(b) of the Act provides that, if the administering 
authority 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 from the administering authority, in reaching the 
applicable determination under this title, the administering authority 
may use an inference adverse to the interests of that party in 
selecting from among the facts otherwise available. See, e.g., Notice 
of Preliminary Determination of Sales at Less Than Fair Value, 
Postponement of Final Determination, and Affirmative Preliminary 
Determination of Critical Circumstances in Part: Prestressed Concrete 
Steel Wire Strand From Mexico, 68 FR 42378 (July 17, 2003), unchanged 
in the final determination (see Notice of Final Determination of Sales 
at Less Than Fair Value and Negative Final Determination of Critical 
Circumstances: Prestressed Concrete Steel Wire Strand from Mexico, 68 
FR 68350 (December 8, 2003)).
    Adverse inferences are appropriate ``to ensure that the party does 
not obtain a more favorable result by failing to cooperate than if it 
had cooperated fully.'' See Statement of Administrative Action 
accompanying the Uruguay Round Agreements Act, H. Doc. No. 103-316, at 
870 (1994) (SAA). Furthermore, ``affirmative evidence of bad faith, or 
willfulness, on the part of a respondent is not required before the 
Department may make an adverse inference.'' See Antidumping Duties, 
Countervailing Duties, Final Rule, 62 FR 27296 (May 19, 1997).
    Despite repeated requests for information concerning Sidenor's 
reported costs, including extensions of time granted to submit the 
necessary information, the company did not provide adequate cost data 
we could use in our calculations.\2\ Sidenor submitted a series of 
supplemental questionnaire responses that were inadequate and lacked 
certain critical elements that address our evaluation of the accuracy 
and reliability of the reported cost information. Additionally, Sidenor 
failed to submit various reconciliation schedules and explanations that 
we requested in our supplemental questionnaires. Therefore, we find 
that Sidenor has failed to cooperate to the best of its ability because 
it continued to be non-responsive despite our repeated requests to 
provide critical information regarding Sidenor's reported costs. 
Consequently, the Department has preliminarily determined that, in 
selecting from among the facts otherwise available, an adverse 
inference is warranted. See section 776(b) of the Act; see also Notice 
of Final Determination of Sales at Less than Fair Value: Circular 
Seamless Stainless Steel Hollow Products from Japan, 65 FR 42985, 42986 
(July 12, 2000), where the Department applied total AFA because the 
respondents failed to respond to the antidumping questionnaire; see 
also Notice of Preliminary Determination of Sales at Less Than Fair 
Value, Postponement of Final Determination, and Affirmative Preliminary 
Determination of Critical Circumstances in Part: Certain Lined Paper 
Products From India, 71 FR 19706 (April 17, 2006), unchanged in the 
final determination (see Notice of Final Determination of Sales at Less 
Than Fair Value, and Negative Determination of Critical Circumstances: 
Certain Lined Paper Products from India, 71 FR 45012, 45013 (August 8, 
2006), where the Department applied total AFA because the respondent 
had failed to address the various deficiencies identified several times 
by the Department).
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    \2\ Because some of the information regarding Sidenor's costs is 
business proprietary, see the AFA Memo for further discussion.
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    As total AFA, we have applied the highest rate determined by the 
Department in the less-than-fair-value investigation, which is 62.85 
percent. See Notice of Final Determination of Sales at Less Than Fair 
Value: Stainless Steel Bar From Spain, 59 FR 66931 (December 28, 1994) 
(Final LTFV). In the LTFV investigation we applied this rate to Acenor 
S.A.
    ``In cases in which the respondent fails to provide Commerce with 
the most recent pricing data, it is within Commerce's discretion to 
presume that the highest prior margin reflects the current margins.'' 
See Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 
1339 (Fed. Cir. 2002) (citing Rhone Poulenc, Inc. v. United States, 899 
F.2d 1185, 1190 (Fed. Cir. 1990)). Further, as stated in Shanghai Taoen 
Int'l Trading Co. v. United States, 360 F. Supp. 2d 1339, 1348 (CIT 
2005) (citing D&L Supply Co. v. United States, 113 F.3d 1220,1223 (Fed. 
Cir. 1997)), ``the purposes of using the highest prior antidumping duty 
rate are to offer assurance that the exporter will not benefit from 
refusing to provide information, and to produce an antidumping duty 
rate that bears some

[[Page 14524]]

relationship to past practices in the industry in question.''
    Section 776(c) of the Act requires that the Department corroborate, 
to the extent practicable, secondary information from independent 
sources that are reasonably at its disposal. Secondary information is 
defined as ``information derived from the petition that gave rise to 
the investigation or review, the final determination concerning the 
subject merchandise, or any previous review under section 751 
concerning the subject merchandise.'' See SAA at 870. The SAA clarifies 
that ``corroborate'' means that the Department will satisfy itself that 
the secondary information to be used has probative value. Id. 
Information from a prior segment of this proceeding, such as that used 
here, constitutes secondary information. See SAA at 870.
    To corroborate secondary information, the Department will examine, 
to the extent practicable, the reliability and relevance of the 
information. The SAA emphasizes, however, that the Department need not 
prove that the selected facts available are the best alternative 
information. See SAA at 869. The SAA also states that independent 
sources used to corroborate such evidence may include, for example, 
published prices lists, official import statistics and customs data, 
and information obtained from interested parties during the particular 
investigation. See 19 CFR 351.308(d) and SAA at 870.
    With respect to the reliability aspect of corroboration, the 
Department found the rate of 62.85 percent to be reliable in the 
investigation. See LTFV, 59 FR 66931. There, the Department assigned to 
Acenor S.A. the highest margin among the margins alleged in the 
petition, as recalculated by the Department. Because the information 
was supported by source documents, we preliminary determine that the 
information is still reliable.
    In making a determination as to the relevance aspect of 
corroboration, the Department will consider information reasonably at 
its disposal as to whether there are circumstances that would render a 
margin not relevant. Where circumstances indicate that the selected 
margin is not appropriate as adverse facts available, the Department 
will disregard the margin and determine an appropriate margin. For 
example, in Fresh Cut Flowers from Mexico: Final Results of Antidumping 
Duty Administrative Review, 61 FR 6812 (February 22, 1996), the 
Department disregarded the highest margin as ``best information 
available'' (the predecessor to ``facts available'') because the margin 
was based on another company's uncharacteristic business expense that 
resulted in an unusually high dumping margin. Similarly, the Department 
does not apply a margin that has been discredited. See D&L Supply Co. 
v. United States, 113 F.3d 1220, 1224 (Fed. Cir. 1997) (the Department 
will not use a margin that has been judicially invalidated). None of 
these unusual circumstances is present here, and there is no evidence 
indicating that the margin used as facts available in this review is 
not appropriate. Further, in accordance with F. LII De Cecco Di Filippo 
Fara S. Martino S.p.A v. United States, 216 F. 3d. 1027, 1030 (Fed. 
Cir. June 16, 2000), we must also examine whether information on the 
record would support the selected rates as reasonable facts available. 
In the investigation, we determined that the calculation of 62.85 
percent reflects commercial practices of the particular industry during 
the period of investigation and, as such, was relevant to mandatory 
respondents that failed to participate in the investigation. Because no 
information has been presented in the current review that calls into 
question the relevance of this information, we preliminarily determine 
that the adverse facts-available rate we corroborated in the 
investigation is relevant to Sidenor in this administrative review of 
the order.
    Similar to our position in Notice of Preliminary Results of 
Antidumping Duty Administrative Review: Polyethylene Retail Carrier 
Bags from Thailand, 71 FR 53405 (September 11, 2006), because this is 
the first review of Sidenor (and because Acenor S.A. failed to 
participate in the investigation), there are no probative alternatives. 
Accordingly, by using information that was corroborated in the 
investigation and preliminarily determined to be relevant to Sidenor in 
this review, we have corroborated the adverse facts-available rate ``to 
the extent practicable.'' See section 776(c) of the Act, 19 CFR 
351.308(d), and NSK Ltd. v. United States, 347 F. Supp. 2d 1312, 1336 
(CIT 2004) (stating, ``pursuant to the 'to the extent practicable' 
language the corroboration requirement itself is not mandatory when not 
feasible'').

Preliminary Results of Review

    As a result of this review, we preliminarily determine a dumping 
margin of 62.85 percent for Sidenor, based on adverse facts available, 
exists for the period March 1, 2005, through February 28, 2006.

Public Comment

    Any interested party may request a hearing within 30 days of the 
publication of this notice in the Federal Register. See 19 CFR 
351.310(c). If a hearing is requested, the Department will notify 
interested parties of the hearing schedule. Interested parties are 
invited to comment on the preliminary results of this review. The 
Department will consider case briefs filed by interested parties within 
30 days after the date of publication of this notice. Also, interested 
parties may file rebuttal briefs, limited to issues raised in the case 
briefs. The Department will consider rebuttal briefs filed not later 
than five days after the time limit for filing case briefs. Parties who 
submit arguments are requested to submit with each argument: (1) a 
statement of the issue, (2) a brief summary of the argument, and (3) a 
table of authorities cited. Further, we request that parties submitting 
written comments provide the Department with a diskette containing an 
electronic copy of the public version of such comments.
    The Department intends to issue the final results of this 
administrative review, including the results of its analysis of issues 
raised in the written comments, within 120 days of publication of these 
preliminary results in the Federal Register.

Assessment Rates

    The Department shall determine, and CBP shall assess, antidumping 
duties on all appropriate entries. Because we are relying on total 
adverse facts available to establish Sidenor's dumping margin, we 
preliminarily determine to instruct CBP to apply a dumping margin of 
62.85 percent to all entries of subject merchandise during the period 
of review which were produced and/or exported by Sidenor. Within 15 
days of publication of the final results of review, the Department will 
issue instructions to CBP.

Cash-Deposit Requirements

    The following cash-deposit requirements will be effective for all 
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, as provided by section 
751(a)(1) of the Act: (1) the cash-deposit rate for Sidenor will be the 
rate established in the final results of this review (except that if 
the rate is de minimis, i.e., less than 0.50 percent, no cash deposit 
will be required); (2) for previously investigated or reviewed 
companies not listed above, the cash-

[[Page 14525]]

deposit rate will continue to be the company-specific rate published 
for the most recent period; (3) if the exporter is not a firm covered 
in this review, a prior review, or the LTFV investigation but the 
manufacturer is, the cash-deposit rate will be the rate established for 
the most recent period for the manufacturer of the subject merchandise; 
and (4) the cash-deposit rate for all other manufacturers or exporters 
will continue to be the ``all others'' rate of 25.77 percent, which is 
the ``all others'' rate established in the LTFV investigation. See SSB 
Order. These cash-deposit rates, when imposed, shall remain in effect 
until further notice.

Notification to Importers

    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 occurred and the subsequent assessment of 
double antidumping duties.
    We are issuing and publishing this notice in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: March 22, 2007.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E7-5690 Filed 3-27-07; 8:45 am]
BILLING CODE 3510-DS-S