[Federal Register Volume 65, Number 216 (Tuesday, November 7, 2000)]
[Notices]
[Pages 66697-66701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28569]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-840]


Manganese Metal From the People's Republic of China; Preliminary 
Results and Rescission in Part of Antidumping Administrative Review

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

ACTION: Notice of Preliminary Results and Rescission in Part of 
Antidumping Duty Administrative Review of Manganese Metal from the 
People's Republic of China.

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SUMMARY: The Department of Commerce is currently conducting an 
administrative review of the antidumping duty order on manganese metal 
from the People's Republic of China. The period of review is February 
1, 1999 through January 31, 2000. This review covers imports of subject 
merchandise from four producers/exporters.
    We have preliminarily determined that sales have been made below 
normal value. If these preliminary results are adopted in our final 
results of review, we will instruct the U.S. Customs Service to assess 
antidumping duties based on the difference between the U.S. price and 
normal value.
    We have also determined that the review of China National 
Electronics Import & Export Hunan Company should be rescinded.
    We invite interested parties to comment on these preliminary 
results. We will issue the final results no later than 120 days from 
the date of publication of this notice.

EFFECTIVE DATE: November 7, 2000.

FOR FURTHER INFORMATION CONTACT: Greg Campbell or Suresh Maniam, Office 
I, Antidumping/Countervailing Duty Enforcement, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone 
(202) 482-2239 or (202) 482-0176, 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 references to the Department of Commerce's 
(Department's) regulations are to 19 CFR Part 351 (April 1999).

Background

    On February 14, 2000, the Department published in the Federal 
Register an Antidumping or Countervailing Duty Order, Finding, or 
Suspended Investigation; Opportunity to Request Administrative Review, 
65 FR 7348 (February 14, 2000).
    In accordance with 19 CFR 351.213(b)(2), on February 29, 2000, the 
petitioner, Eramet Marietta Inc., requested that we conduct an 
administrative review of this order covering China Metallurgical Import 
& Export Hunan Corporation/Hunan Nonferrous Metals Import & Export 
Associated Corporation (CMIECHN/CNIECHN), Minmetals Precious and Rare 
Minerals Import & Export Company (Minmetals), London & Scandinavian 
Metallurgical Co. Ltd./Shieldalloy Metallurgical Corporation (LSM/
SMC),\1\ Sumitomo Canada, Ltd. (SCL), and China National Electronics 
Import & Export Hunan Company (CEIEC). On February 29, 2000, the co-
petitioner, Kerr-McGee Chemical, LLC (Kerr-McGee), likewise requested 
that we conduct an administrative review of this order covering 
CMIECHN/CNIECHN, Minmetals, CEIEC, LSM, and SCL.
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    \1\ SMC is the affiliated U.S. importer of manganese metal from 
the U.K. reseller LSM.
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    On March 30, 2000, we published a notice of initiation of this 
antidumping duty administrative review of the companies named by the 
petitioners. See Antidumping and Countervailing Duty Order, Finding, or 
Suspended Investigation; Opportunity to Request Administrative Review, 
65 FR at 16875. On June 9, 2000, we issued questionnaires to the 
companies. On June 19, 2000, SCL informed the

[[Page 66698]]

Department that, given the small volume of merchandise it entered 
during the period of review (POR), SCL would not participate in this 
review. CEIEC made a submission on June 23, 2000, certifying that it 
did not sell or ship subject merchandise to the United States during 
the POR. CMIECHN/CNIECHN and Minmetals submitted their questionnaire 
responses by July 24, 2000, and their supplemental responses by 
September 19, 2000. LSM/SMC submitted its questionnaire responses by 
July 24, 2000, and their supplemental responses by September 12, 2000. 
On August 29, 2000, Eramet Marietta informed the Department that, 
because it intended to close its manganese metal operations by year-
end, it was withdrawing as a domestic interested party in this case.

Preliminary Rescission of Review in Part

    As stated above in the Background section, CEIEC notified the 
Department that it had not made any U.S. sales of subject merchandise 
during the POR. Entry data provided by the U.S. Customs Service 
(Customs) confirms that there were no POR entries from CEIEC of 
manganese metal.\2\ Therefore, consistent with the Department's 
regulations and practice,\3\ we are preliminarily rescinding this 
review with respect to CEIEC.
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    \2\ See Memorandum to the Case File; Confirmation of No Shipment 
by CEIEC (October 31, 2000).
    \3\ See 19 CFR 351.213(d)(3); Silicon Metal from Brazil; Final 
Results of Antidumping Duty Administrative Review, 61 FR 46763 
(September 5, 1996).
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Scope of Review

    The merchandise covered by this review is manganese metal, which is 
composed principally of manganese, by weight, but also contains some 
impurities such as carbon, sulfur, phosphorous, iron and silicon. 
Manganese metal contains by weight not less than 95 percent manganese. 
All compositions, forms and sizes of manganese metal are included 
within the scope of this administrative review, including metal flake, 
powder, compressed powder, and fines. The subject merchandise is 
currently classifiable under subheadings 8111.00.45.00 and 
8111.00.60.00 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 
proceeding is dispositive.

Separate Rates

    It is the Department's standard policy to assign all exporters of 
the merchandise subject to review in nonmarket economy (NME) countries 
a single rate unless an exporter can demonstrate an absence of 
government control, both in law and in fact, with respect to exports. 
To establish whether an exporter is sufficiently independent of 
government control to be entitled to a separate rate, the Department 
analyzes the exporter in light of the criteria established in the Final 
Determination of Sales at Less Than Fair Value: Sparklers from the 
People's Republic of China, 56 FR 20588 (May 6, 1991) (Sparklers), as 
amplified in the Final Determination of Sales at Less Than Fair Value: 
Silicon Carbide from the People's Republic of China, 59 FR 22585 (May 
2, 1994) (Silicon Carbide). Evidence supporting, though not requiring, 
a finding of de jure absence of government control over export 
activities includes: (1) an absence of restrictive stipulations 
associated with an individual exporter's business and export licenses; 
(2) any legislative enactments decentralizing control of companies; and 
(3) any other formal measures by the government decentralizing control 
of companies. See Sparklers, 56 FR at 20589. A de facto analysis of 
absence of government control over exports is based on four factors--
whether the respondent: (1) sets its own export prices independent of 
the government and other exporters; (2) retains the proceeds from its 
export sales and makes independent decisions regarding the disposition 
of profits or financing of losses; (3) has the authority to negotiate 
and sign contracts and other agreements; and (4) has autonomy from the 
government regarding the selection of management. See Silicon Carbide, 
59 FR at 22587; see also Sparklers, 56 FR at 20589.
    In the Notice of Amended Final Determination and Antidumping Duty 
Order; Manganese Metal from the People's Republic of China 61 FR 4415 
(February 6, 1996) (LTFV Investigation), we determined that there was 
de jure and de facto absence of government control of each company's 
export activities and determined that each company warranted a company-
specific dumping margin. For the POR, CMIECHN/CNIECHN and Minmetals 
responded to the Department's request for information regarding 
separate rates. We have found that the evidence on the record is 
consistent with the final determination in the LTFV Investigation and 
both CMIECHN/CNIECHN and Minmetals continue to demonstrate an absence 
of government control, both in law and in fact, with respect to their 
companies' exports, in accordance with the criteria identified in 
Sparklers and Silicon Carbide.

Use of Facts Otherwise Available

    Section 776(a)(2) of the Act provides that if an interested party: 
(1) withholds information that has been requested by the Department, 
(2) fails to provide such information in a timely manner or in the form 
requested, (3) significantly impedes a proceeding under the antidumping 
statute, or (4) provides information that cannot be verified, the 
Department shall use, subject to section 782(d), facts available in 
reaching the applicable determination.

1. Application of Facts Available

    On June 19, 2000, SCL informed the Department that, given the small 
volume of merchandise it entered during the POR, SCL would not 
participate in this review. We preliminarily determine that, in 
accordance with sections 776(a)(2)(A) and (C) of the Act, the use of 
facts otherwise available is appropriate for SCL because it did not 
submit a response to our questionnaire issued to it on June 9, 2000.

2. Use of Adverse Facts Available

    In selecting from among the facts available, section 776(b) of the 
Act authorizes the Department to use an adverse inference if the 
Department finds that a party has failed to cooperate by not acting to 
the best of its ability to comply with requests for information. See 
Statement of Administrative Action (SAA), H.R. Doc. 103-316 at 870 
(1994). To examine whether the respondent ``cooperated'' by ``acting to 
the best of its ability'' under section 776(b) of the Act, the 
Department considers, inter alia, the accuracy and completeness of 
submitted information and whether the respondent has hindered the 
calculation of accurate dumping margins. See e.g., Certain Welded 
Carbon Steel Pipes and Tubes From Thailand: Final Results of 
Antidumping Duty Administrative Review, 62 FR 53808, 53819-53820 
(October 16, 1997).
    As discussed above, SCL failed to respond to the Department's 
questionnaire. Thus, we have determined that SCL withheld information 
that we requested and significantly impeded the antidumping proceeding. 
Without information from SCL, the Department is unable to review SCL's 
entries and calculate an assessment rate for those entries. We 
therefore find that SCL has not acted to the best of its ability to 
comply with our

[[Page 66699]]

requests for information. Accordingly, consistent with section 776(b) 
of the Act, we have applied adverse facts available to this company.

3. Corroboration of Secondary Information

    In this review, we are using as adverse facts available the PRC-
wide rate (143.32 percent) determined for non-responding exporters 
involved in the LTFV Investigation. This margin, which is the highest 
rate determined in any segment of this proceeding, represents the 
highest margin in the petition, as modified by the Department for the 
purposes of initiation. See Initiation of Antidumping Duty 
Investigation: Manganese Metal from the People's Republic of China, 59 
FR 61869 (December 2, 1994) (LTFV Initiation). It is also the rate 
currently applicable to all PRC exporters that do not have separate 
rates.
    Information derived from the petition constitutes secondary 
information within the meaning of the SAA. See SAA at 870. Section 
776(c) of the Act provides that the Department shall, to the extent 
practicable, corroborate secondary information from independent sources 
reasonably at its disposal. The SAA provides that ``corroborate'' means 
that the Department will satisfy itself that the secondary information 
to be used has probative value. The SAA at 870, however, states further 
that ``the fact that corroboration may not be practicable in a given 
circumstance will not prevent the agencies from applying an adverse 
inference.'' In addition, the SAA at 869, emphasizes that the 
Department need not prove that the facts available are the best 
alternative information.
    The PRC-wide rate being used in this proceeding as adverse facts 
available was previously corroborated. See Manganese Metal from the 
People's Republic of China; Final Results of Antidumping Duty 
Administrative Review, 64 FR 49447 (September 13, 1999). We have no new 
information that would lead us to reconsider that decision.

Export Price

    For U.S. sales made by CMIECHN/CNIECHN and Minmetals we calculated 
an export price, in accordance with section 772(a) of the Act, because 
the subject merchandise was sold to unaffiliated purchasers in the 
United States prior to importation into the United States.
    For these sales, we calculated export price based on the price to 
unaffiliated purchasers. We deducted an amount, where appropriate, for 
foreign inland freight, ocean freight, and marine insurance.
    For U.S. sales made by LSM/SMC, we calculated a constructed export 
price (CEP), in accordance with section 772(c) of the Act, because the 
subject merchandise was sold by an affiliated importer in the United 
States after importation into the United States. We calculated CEP 
based on the packed, ex-warehouse prices from the U.S. subsidiary to 
unaffiliated customers. We made deductions, where appropriate, from the 
starting price for CEP for international freight from the United 
Kingdom to the United States, U.K. inland freight, marine insurance, 
U.S. customs duties, U.S. brokerage, U.S. inland freight, and U.S. 
freight to the unaffiliated purchaser. In accordance with section 
772(d)(1) of the Act, we made further deductions from the starting 
price for CEP for the following selling expenses that related to 
economic activity in the United States: credit expenses and indirect 
selling expenses, including inventory carrying costs. In accordance 
with section 772(d)(3) of the Act, we have also deducted from the 
starting price an amount for profit. Finally, since the sales made by 
SMC to the unaffiliated purchaser were further manufactured products, 
we further deducted, in accordance with section 772(d)(2), the 
following costs associated with the further manufacturing: material, 
labor, overhead, packing, general and administrative expenses, and 
interest expense.

Normal Value

1. Nonmarket-Economy Status

    For the calculation of dumping margins for merchandise originating 
in NME countries, section 773(c)(1) of the Act provides that the 
Department shall determine normal value (NV) using a factors-of-
production methodology if (1) the merchandise is exported from an NME 
country, and (2) the information does not permit the calculation of NV 
using home-market prices, third-country prices, or constructed value 
under section 773(a) of the Act.
    The Department has treated the PRC as an NME country in all 
previous antidumping cases. In accordance with section 771(18)(c)(i) of 
the Act, any determination that a foreign country is a NME country 
shall remain in effect until revoked by the administering authority. 
None of the parties to this proceeding has contested such treatment in 
this review. Furthermore, available information does not permit the 
calculation of NV using home-market prices, third-country prices, or 
constructed value under section 773(a) of the Act. Therefore, we 
treated the PRC as a NME country for purposes of this review and 
calculated NV for the two PRC exporters CMIECHN/CNIECHN and Minmetals 
by valuing the factors of production in a comparable market-economy 
country which is a significant producer of comparable merchandise.
    With regard to NV for LSM/SMC's sales, the statute directs that,

    Where the subject merchandise is exported to the United States 
from an intermediate country, normal value shall be determined in 
the intermediate country, except that normal value may be determined 
in the country of origin if--
    (A) the producer knew at the time of the sale that the subject 
merchandise was destined for exportation;
    (B) the subject merchandise is merely transshipped through the 
intermediate country;
    (C) sales of the foreign like product in the intermediate 
country do not satisfy the conditions of paragraph (1)(c); or
    (D) the foreign like product is not produced in the intermediate 
country.

See Section 773(a)(3) of the Act.
    Information from the petition and on the record of prior 
administrative reviews has established the United Kingdom does not 
produce the foreign like product. Parties to this review have submitted 
no evidence suggesting that this situation has changed. Thus, at least 
one of the above statutory criteria (i.e., criterion D) has been met. 
Therefore, to determine whether LSM/SMC's sales were sold at prices 
below NV, we have determined NV in the PRC, the country of origin. 
Furthermore, because the country of origin is the PRC, consistent with 
section 773(c)(1) of the Act we have constructed a NV based on PRC 
factors of production. As a result, the NV for LSM/SMC is the same as 
the NV for CMIECHN/CNIECHN.\4\
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    \4\ For a more in-depth discussion of these issues, see 
Memorandum to Richard W. Moreland; Third-County Resellers and 
Treatment of SG&A and Movement Expenses (October 25, 2000).
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2. Surrogate-Country Selection

    In accordance with section 773(c)(4) of the Act and section 
351.408(b) of our regulations, we preliminarily determine that India is 
comparable in terms of economic development to the PRC.\5\ In addition, 
India is a significant producer of comparable merchandise. Therefore, 
for this review, we have selected India as the surrogate country and 
have used publicly available information relating

[[Page 66700]]

to India, unless otherwise noted, to value the various factors of 
production.
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    \5\ See Memorandum to Susan Kuhbach from Jeff May; Non-Market-
Economy Status and Surrogate Country Selection (June 12, 2000), a 
public copy of which is available in the Central Records Unit.
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3. Factors-of-Production Valuation

    For purposes of calculating NV, we valued PRC factors of production 
in accordance with section 773(c)(1) of the Act. Factors of production 
include but are not limited to the following elements: (1) hours of 
labor required; (2) quantities of raw materials used; (3) amounts of 
energy and other utilities consumed; and (4) representative capital 
cost, including depreciation. In examining potential surrogate values, 
we selected, where possible, the publicly available value which was: 
(1) an average non-export value; (2) representative of a range of 
prices within the POR or closest in time to the POR; (3) product-
specific; and (4) tax-exclusive. Where we could not obtain a POR-
representative price for an appropriate surrogate value, we selected a 
value in accordance with the remaining criteria mentioned above which 
was the closest in time to the POR. In accordance with this 
methodology, we have valued the factors as follows.\6\
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    \6\ For a more detailed explanation of the methodology used in 
calculating various surrogate values, see Memorandum to the File 
from Case Team; Calculations for the Preliminary Results (October 
31, 2000).
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    We valued manganese Ore 1 using a POR price quotation for carbonate 
manganese ore submitted by the petitioner. We valued Ore 2 using an 
average of two POR price quotations from Indian manganese ore 
producers. We adjusted these prices for Ore 1 and Ore 2 to account for 
the reported manganese content of the ore used in the PRC manufacture 
of the subject merchandise and to account for the differences in 
transportation distances.
    To value various process chemicals used in the production of 
manganese metal, we used prices obtained from the following Indian 
sources: Indian Chemical Weekly (February 1999 through January 2000), 
the Monthly Statistics of Foreign Trade of India, Volume II--Imports 
(April 1998 through August 1998) (Import Statistics), as well as price 
quotations from various Indian chemicals producers. Where necessary, we 
adjusted these values to reflect inflation up through the POR using an 
Indian wholesale price index (WPI) published by the International 
Monetary Fund (IMF). Additionally, we adjusted these values, where 
appropriate, to account for differences in chemical content and to 
account for freight costs incurred between the suppliers and manganese 
metal producers.
    We have derived a surrogate value for electricity based on 
electricity price data published by the Center for Monitoring Indian 
Economy (CMIE) and on an electricity-specific price index published by 
the Reserve Bank of India.
    To value the labor input, consistent with 19 CFR 351.408(c)(3), we 
used the regression-based estimated wage rate for the PRC as calculated 
by the Department.\7\
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    \7\ See the ITA website at http://ia.ita.doc.gov/wages/
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    We have derived ratios for selling, general, and administrative 
expenses (SG&A), factory overhead, and profit based on aggregated 
financial data published by the CMIE for the Indian nonferrous metals 
industry.
    For most packing materials values, we used per-unit values based on 
data from the Import Statistics. For metal drums, however, we used a 
price quote from an Indian drum manufacturer. We made further 
adjustments, where necessary, to these packing material values to 
account for freight costs incurred between the PRC supplier and 
manganese metal producers.
    To value rail freight, we relied on rate tables published by the 
Indian Railway Conference Association. To value truck freight, we used 
a price quotation from an Indian freight provider. With regard to ocean 
freight, where a company had reported that it incurred ocean freight 
expenses in market economy currency, from a market economy provider 
through a market economy agent, we used the reported expenses to value 
all ocean freight costs reported by that company.

Preliminary Results of the Review

    As a result of our review, we preliminarily determine that the 
following percentage weighted-average margins exist for the period 
February 1, 1999, through January 31, 2000:

------------------------------------------------------------------------
                   Manufacturer/exporter                        Margin
------------------------------------------------------------------------
CMIECHN/CNIECHN............................................        27.18
Minmetals..................................................        19.70
LSM/SMC....................................................        13.33
SCL........................................................       143.32
------------------------------------------------------------------------

    Because we are rescinding the review with respect to CEIEC, the 
company-specific rate for that company remains unchanged.
    Parties to the proceeding may request disclosure within five days 
of the date of publication of this notice. Any interested party may 
request a hearing within 30 days of publication of this notice. See 19 
CFR 351.310(c). Any hearing, if requested, will be held approximately 
44 days after the date of publication, or the first working day 
thereafter. Interested parties may submit case briefs and/or written 
comments no later than 30 days after the date of publication of this 
notice. Rebuttal briefs and rebuttals to written comments, which must 
be limited to issues raised in such briefs or comments, may be filed 
not later than 37 days after the date of publication. Parties who 
submit arguments are requested to submit with the argument (1) a 
statement of the issue, (2) a brief summary of the argument, and (3) a 
table of authorities. Further, parties submitting written comments 
should provide the Department with an additional copy of the public 
version of any such comments on diskette. The Department will issue a 
notice of final results of this administrative review, including the 
results of its analysis of issues raised in any such written comments, 
within 120 days of publication of these preliminary results.

Assessment Rates

    Pursuant to 19 CFR 351.212(b), the Department calculates an 
assessment rate for each importer of the subject merchandise. Upon 
issuance of the final results of this administrative review, if any 
importer-specific assessment rates calculated in the final results are 
above de minimis (i.e., at or above 0.5 percent), the Department will 
issue appraisement instructions directly to the Customs Service to 
assess antidumping duties on appropriate entries by applying the 
assessment rate to the entered value of the merchandise. For assessment 
purposes, we calculate importer-specific assessment rates for the 
subject merchandise by aggregating the dumping duties due for all U.S. 
sales to each importer and dividing the amount by the total entered 
value of the sales to that importer.

Cash Deposit Requirements

    To calculate the cash-deposit rate for each producer and/or 
exporter included in this administrative review, we divided the total 
dumping margins for each company by the total net value for that 
company's sales during the review period.
    Furthermore, the following cash deposit requirements will be 
effective upon publication of the final results of this administrative 
review for all shipments of manganese metal entered, or withdrawn from 
warehouse, for consumption on or after the publication date of the 
final results of this administrative review, as provided for by section 
751(a)(1) of the Act: (1) the cash deposit rate for CMIECHN/CNIECHN, 
Minmetals, LSM/SMC, and

[[Page 66701]]

SCL will be the rates established in the final results of this 
administrative review, except if the rate is less than 0.5 percent and, 
therefore, de minimis, the cash deposit will be zero; (2) for CEIEC, 
which we determined to be entitled to a separate rate in the LTFV 
Investigation but which did not have shipments or entries to the United 
States during the POR, the rate will continue to be the currently-
applicable rate of 11.77 percent, (3) for non-PRC exporters of subject 
merchandise from the PRC not specifically listed above, the cash 
deposit rate will be the rate applicable to the PRC supplier of that 
exporter; \8\ and (4) for all other PRC exporters, the cash deposit 
rate will be 143.32 percent.
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    \8\ See e.g., Manganese Metal from the People's Republic of 
China; Final Results of Antidumping Duty Administrative Review, 64 
FR 49447 (September 13, 1999); Fresh Garlic from the People's 
Republic of China; Final Results of Antidumping Duty Administrative 
Review and Partial Termination of Administrative Review, 62 FR 
23758, 23760 (May 1, 1997); Sparklers from the People's Republic of 
China; Final Results of Antidumping Duty Administrative Review, 61 
FR 39630, 39631 (July 30, 1996).
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    These cash deposit requirements, when imposed, shall remain in 
effect until publication of the final results of the next 
administrative review.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f) 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: October 31, 2000.
Troy H. Cribb,
Assistant Secretary for Import Administration.
[FR Doc. 00-28569 Filed 11-6-00; 8:45 am]
BILLING CODE 3510-DS-P