Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices 17171

Product Country Review period Initiation date Prelm due

date

Final due

date*

Solid Urea (A–429–601) ................... Germany ........................................... 95/96 08/15/96 06/02/97 09/30/97

*The Department shall issue the final determination 120 days after the publication of the preliminary determination. This final due date is estimated based on publication of the preliminary notice five business days after signature.

Dated: April 2, 1997.

Joseph A. Spetrini,

Deputy Assistant Secretary, AD/CVD

Enforcement Group III.

[FR Doc. 97–9115 Filed 4–8–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–580–811]

Steel Wire Rope From the Republic of

Korea; Final Results of Antidumping

Duty Administrative Review and

Revocation in Part of Antidumping

Duty Order

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of Final Results of

Antidumping Duty Administrative

Review and Revocation in Part of

Antidumping Duty Order.

SUMMARY: On December 3, 1996, the

Department of Commerce (the

Department) published the preliminary

results of its 1995–96 administrative

review of the antidumping duty order

on steel wire rope from the Republic of

Korea and intent to revoke in part (61

FR 64058). The review covers 12

manufacturers/exporters for the period

March 1, 1995, through February 29,

1996 (the POR). We have analyzed the

comments received on our preliminary

results and have determined that no

changes in the margin calculations are

required. The final weighted-average

dumping margins for each of the

reviewed firms are listed below in the

section entitled ‘‘Final Results of

Review.’’

EFFECTIVE DATE: April 9, 1997.

FOR FURTHER INFORMATION CONTACT:

Matthew Rosenbaum or Thomas O.

Barlow, Import Administration,

International Trade Administration,

U.S. Department of Commerce, 14th

Street and Constitution Avenue,

Washington, D.C. 20230; telephone:

(202) 482–4733.

SUPPLEMENTARY INFORMATION:

The Applicable Statute

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’s regulations are to

the current regulations, as amended by

the interim regulations published in the

Federal Register on May 11, 1995 (60

FR 25130).

Background

On December 12, 1996, the

Department published in the Federal

Register the preliminary results of its

1995–96 administrative review of the

antidumping duty order on steel wire

rope from the Republic of Korea and

intent to revoke in part (61 FR 64058)

(Preliminary Results). We gave

interested parties an opportunity to

comment on our preliminary results. We

received case briefs from the petitioner,

the Committee of Domestic Steel Wire

Rope and Specialty Cable Manufacturers

(the Committee), and rebuttal briefs

from six respondents, including ChungWoo Rope Co., Ltd. (Chung Woo), Chun

Kee Steel & Wire Rope Co., Ltd. (Chun

Kee), Manho Rope & Wire Ltd. (Manho),

Kumho Wire Rope Mfg. Co., Ltd.

(Kumho), Ssang Yong Steel Wire Co.,

Inc. (Ssang Yong), and Sungjin

Company (Sungjin). There was no

request for a hearing.

We have conducted this

administrative review in accordance

with section 751(a)(1) of the Tariff Act

of 1930, as amended (the Act), and 19

CFR 353.22.

Revocation In Part

We are revoking the order for Chun

Kee and Manho. Chun Kee and Manho

have sold the subject merchandise at not

less than normal value (NV) for three

consecutive review periods, including

this review. Further, on the basis of no

sales at less than NV for these periods

and the lack of any indication that such

sales are likely in the future, we have

determined that Chun Kee and Manho

are not likely to sell the merchandise at

less than NV in the future. Chun Kee

and Manho have also submitted

certifications that they will not sell at

less than NV in the future, along with

an agreement for immediate

reinstatement of the order if such sales

occur. See our discussion in response to

Comment 1 below.

Scope of Review

The product covered by this review is

steel wire rope. Steel wire rope

encompasses ropes, cables, and cordage

of iron or carbon steel, other than

stranded wire, not fitted with fittings or

made up into articles, and not made up

of brass-plated wire. Imports of these

products are currently classifiable under

the following Harmonized Tariff

Schedule (HTS) subheadings:

7312.10.9030, 7312.10.9060, and

7312.10.9090. Excluded from this

review is stainless steel wire rope, i.e.,

ropes, cables and cordage other than

stranded wire, of stainless steel, not

fitted with fittings or made up into

articles, which is classifiable under HTS

subheading 7312.10.6000. Although

HTS subheadings are provided for

convenience and Customs purposes, our

own written description of the scope of

this review is dispositive.

Use of Facts Otherwise Available

We have determined, in accordance

with section 776(a) of the Act, that the

use of facts available is appropriate for

Boo Kook Corporation (Boo Kook),

Dong-Il Steel Mfg. Co., Ltd. (Dong-Il),

and Yeonsin Metal (Yeonsin) because

they did not respond to our

antidumping questionnaire. We find

that these firms have not provided

‘‘information that has been requested by

the administering authority.’’

Furthermore, we determine that,

pursuant to section 776(b) of the Act, it

is appropriate to make an inference

adverse to the interests of these

companies because they failed to

cooperate by not responding to our

questionnaire.

Where the Department must base the

entire dumping margin for a respondent

in an administrative review on facts

otherwise available because that

respondent failed to cooperate, section

776(b) of the Act authorizes the use of

an inference adverse to the interests of

that respondent in choosing the facts

available. Section 776(b) of the Act also

authorizes the Department to use as

adverse facts available information

derived from the petition, the final

determination, a previous

administrative review, or other

information placed on the record.
17172 Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices

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

Statement of Administrative Action

(SAA) provides that ‘‘corroborate’’

means simply that the Department will

satisfy itself that the secondary

information to be used has probative

value. (See H.R. Doc. 316, Vol. 1, 103d

Cong., 2d sess. 870 (1994).)

To corroborate secondary information,

the Department will, to the extent

practicable, examine the reliability and

relevance of the information to be used.

However, unlike other types of

information, such as input costs or

selling expenses, there are no

independent sources for calculated

dumping margins. Thus, in an

administrative review, if the Department

chooses as total adverse facts available

a calculated dumping margin from a

prior segment of the proceeding, it is not

necessary to question the reliability of

the margin for that time period. With

respect to the relevance aspect of

corroboration, however, 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 (see, e.g., Fresh Cut

Flowers from Mexico; Final Results of

Antidumping Duty Administrative

Review, 61 FR 6812 (Feb. 22, 1996)

(where the Department disregarded the

highest margin as adverse best

information available (BIA) because the

margin was based on another company’s

uncharacteristic business expense

resulting in an unusually high margin)).

For a discussion of our application of

facts available regarding specific firms,

see our response to Comment 3 below.

Analysis of Comments Received

Comment 1: The Committee contends

that Chun Kee and Manho failed to

establish the second of three requisite

regulatory criteria for revocation of an

antidumping duty order. It argues, citing

Toshiba Corp. v. United States, 15 CIT

597, 600 (1991), that the burden is on

the respondent requesting revocation to

demonstrate, by placing substantial

evidence on the record, that there is no

likelihood of a resumption of sales at

less than normal value and that Chun

Kee and Manho failed to demonstrate

this.

The Committee claims that several

factors demonstrate that Chun Kee and

Manho are likely to resume selling steel

wire rope at less than normal value.

First, it contends that the U.S. steel wire

rope market is characterized by

intensely competitive conditions among

many foreign suppliers who compete

against one another based mainly on

price. According to the Committee,

since the antidumping duty order on

this product went into effect (March 26,

1993), total U.S. imports of steel wire

rope have decreased and foreign

competition has increased. The

Committee argues that these market

trends place pressure on Chun Kee and

Manho to reduce their prices and

remain competitive in the U.S. market.

The Committee further contends that

these pressures are intensified by the

fact that both Chun Kee and Manho

export only to the United States and that

the U.S. market represents a substantial

percentage of each company’s total

sales. The Committee contends that

neither Chun Kee nor Manho can afford

to abandon the U.S. market and must

price their products competitively,

forcing them sell steel wire rope at the

lowest possible price.

The Committee claims that the

volatility of the Korean won makes it

inappropriate to conclude that there is

no likelihood of a resumption of sales at

less than normal value. The Committee

states that, in Brass Sheet and Strip

from Germany; Final Results of

Antidumping Duty Administrative

Review and Determination Not to

Revoke in Part, 61 FR 49731 (September

23, 1996) (Brass Sheet and Strip), the

Department determined that it could not

conclude that there was no likelihood of

a resumption of sales at less than

normal value, in part due to the

continued strengthening of the Deutsche

mark. The Committee also notes that in

Titanium Sponge from Japan;

Preliminary Results of Antidumping

Duty Administrative Review, 53 FR

26099 (July 11, 1988) (Titanium

Sponge), the Department refused to

grant partial revocation due in part to

the decline in purchasing power of the

U.S. dollar against the Japanese yen.

The Committee claims that

throughout the three periods of review

in this case, the Korean won appreciated

against the U.S. dollar, which increases

the likelihood that a respondent’s future

sales will be made at less than normal

value. The Committee notes that, since

the end of this POR, the Korean won has

depreciated quickly and steadily against

the U.S. dollar, illustrating the volatility

of the Korean currency. The Committee

further notes that such volatility

suggests that the currency could

experience a sudden and substantial

appreciation in the future. The

Committee argues that this appreciation

could force Korean exporters to decrease

their prices on steel wire rope sales to

the United States to maintain their

competitiveness.

The Committee also claims that the

Korean won’s fluctuation vis-a-vis the

Japanese yen militates against a finding

of no likely future dumping. The

Committee states, first, that the won

depreciated against the yen during the

1993/94 and 1994/95 periods, thereby

increasing the costs of inputs into

subject merchandise. The Committee

claims that, despite this increase in

costs, the Korean respondents continued

to sell subject merchandise in the

United States at unfairly low prices. The

Committee suggests that the won’s

subsequent appreciation against the yen

(since the last quarter of the 1994/95

period) will allow respondents to sell in

the United States at even lower prices.

The Committee also argues that the

Department should not revoke the

antidumping duty order in part because

Chun Kee and Manho have failed to

provide any evidence on the record of

this proceeding to establish that there is

no likelihood of a resumption of sales at

less than normal value. The Committee

claims that, because the Department

conducted verifications of Chun Kee’s

and Manho’s sales responses, both

companies had ample time to submit

evidence in support of their revocation

requests. Therefore, according to the

Committee, the Department does not

have the authority to revoke the order

with respect to Chun Kee and Manho

because of the lack of verification of any

evidence in support of their requests for

verification.

Finally, the Committee contends that,

although Chun Kee and Manho received

de minimis or zero-percent dumping

margins in the 1993/94 and 1994/95

reviews and in the preliminary results

of this review, the Department

determined that both companies sold

subject merchandise in the home market

at prices below the cost of production.

It argues that this pattern of selling

below cost greatly increase the

likelihood that the companies will sell

at less than normal value in the future.

The Committee also suggests that the

Department must consider the fact that

Chun Kee received de minimis rather

than zero-percent margins in the prior

reviews. Hence, claims the Committee,

the slightest shift in Chun Kee’s pricing

practice could easily result in a

resumption in sales at less than fair

value.

Chun Kee and Manho respond that

they have both established all of the

requisite regulatory criteria for

revocation. They state that the

Department’s regulations authorize the
Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices 17173

Department to revoke an antidumping

order when: (1) The producer has sold

the merchandise at not less than normal

value for three consecutive years; (2) it

is not likely that the producer will in

the future sell the merchandise at less

than normal value; and (3) the producer

agrees in writing to immediate

reinstatement of the order if the

Department later finds that the revoked

producer is selling the merchandise at

less than normal value (citing 19 CFR

353.25(a)(2)). Respondents claim that,

since the current version of 19 CFR

353.25 was adopted in 1989, the

Department has granted revocation in

virtually every case where a respondent

has established three consecutive years

of no dumping and furnished the

required certifications.

Respondents cite Tatung Company v.

United States, 18 CIT 1137 (December

14, 1994) (Tatung Company), where the

court found that past behavior

constitutes substantial evidence of

expected future behavior. Respondents

state that, during the history of this

proceeding, the only dumping margin

found for any responding company was

a 1.51 percent margin for Manho during

the 1992 less-than-fair-value (LTFV)

investigation. They further note that,

under the post-URAA law, a 1.51

percent margin is de minimis; therefore,

they contend, under the current law

neither Chun Kee nor Manho have ever

sold the subject merchandise at less

than normal value.

With respect to the Committee’s

arguments concerning competitive U.S.

market conditions, respondents state

that they have been selling steel wire

rope in the United States without

dumping for at least 18 years and that

the Korean market is equally if not more

competitive than the U.S. market and

becoming more competitive with a

depreciating currency (citing Fresh Cut

Flowers from Mexico; Final Results of

Antidumping Duty Administrative

Review and Revocation in Part of

Antidumping Duty Order, 61 FR 63822,

63825 (December 2, 1996) (Fresh Cut

Flowers), where the Department granted

revocation to a respondent while

agreeing that the devaluation of the

home market currency makes dumping

less likely).

Respondents dispute the Committee’s

argument that an increase in imports

into the United States from countries

other than the Republic of Korea will

cause Chun Kee and Manho to sell

subject merchandise at unfair prices in

the United States in the future.

Respondents note that Korean imports

have decreased relative to total imports

since the 1992 LTFV investigation,

during which time they have not sold at

less than normal value.

Respondents also state that they have

not artificially decreased or

manipulated product lines to ensure

revocation. Respondents distinguish

this case from Brass Sheet and Strip

where the respondent had an incentive

to continue dumping, intentionally

avoided sales of lower-priced subject

merchandise, and purposefully sold

small and controlled quantities for a

three-year period.

Respondents claim that there is no

evidence on the record to support the

assertion that either company depends

on sales to the United States for

financial viability or that this alleged

financial dependence will cause Chun

Kee and Manho to sell at prices below

the normal value in the future. In this

regard, respondents claim that the

Committee misrepresents the facts by

claiming that Chun Kee and Manho do

not sell subject merchandise to third

countries. Respondents claim that they

both sold significant volumes of subject

merchandise to third countries and

proved so at verification.

Respondents characterize as illogical

the Committee’s argument that the

Department should deny revocation

now that the Korean won is depreciating

relative to the U.S. dollar. Respondents

state that a depreciating Korean won in

facts makes selling at below normal

value less likely to occur and note that

Chun Kee and Manho have a proven

record of selling subject merchandise

above normal value when the Korean

won appreciates. They claim that the

Department has granted revocation in

past cases when respondents have

shown a proven track record that it had

not sold its merchandise at less than fair

value when the home market currency

appreciated during past administrative

reviews (citing Tapered Roller Bearings

and Parts Thereof, Finished and

Unfinished, From Japan and Tapered

Roller Bearings, Four Inches or Less in

Outside Diameter, and Components

Thereof, From Japan; Final Results of

Antidumping Duty Administrative

Reviews and Revocation in Part of an

Antidumping Finding, 61 FR 57650,

(November 7, 1996) (TRBs), and Color

Television Receivers, Except for Video

Monitors, From Taiwan; Final Results,

55 FR 47093 (November 9, 1990) (Color

TVs)). Respondents also note that, in

Color TVs, as in this case, respondents

were never found to have sold at less

than normal value either before or since

the order was issued, and respondents

sold substantial and increasing

quantities of subject merchandise

throughout the three review periods.

Respondents also deny the

Committee’s claim that Chun Kee and

Manho imported wire rod from Japan in

the period of review and argue that,

even if they did import from Japan, the

cost for the input would be reflected in

the home market and in the United

States price.

With respect to the Committee’s

argument that respondents did not

demonstrate ‘‘no likelihood’’ to resume

selling at prices below the normal value

at verification, respondents claim that

the Department’s verifications of Chun

Kee and Manho were consistent with its

regulations and claim that the

Committee never asked prior to

verification that the Department

consider the issue of likelihood of

resumption of sales at less than fair

value at verification. Respondents cite

19 CFR 353.36(c) and claim that at

verification the Department’s only

obligation is to have access to all files,

records and personnel which the

Secretary considers relevant to

submitted factual information. They

claim that at both verifications the

Department had access to all the

information it needed to make a

preliminary finding to partially revoke

the order and it had the responsibility

to request any other information it

considered relevant.

Finally, respondents state that the

Department considers a weightedaverage de minimis margin to be

equivalent to a zero margin for all sales

regardless of the actual margin on

individual sales for purposes of

eligibility for revocation (citing Color

TVs). Therefore, argue respondents, the

Committee’s statement that Chun Kee’s

margin was 0.1 percent rather than zero

is irrelevant.

Department’s Position: We disagree

with the Committee and are revoking in

part the antidumping duty order with

respect to Chun Kee and Manho. Both

respondents have obtained de minimis

margins for the requisite consecutive

review periods and have provided us

with the necessary certifications in

accordance with our regulations. In

addition, based on the evidence on the

record, we have concluded that it is not

likely that in the future that these

respondents will sell the subject

mechandise at less than normal value.

As noted above, in the past two reviews

and for the final results of review, Chun

Kee and Manho have had de minimis

weighted-average margins. As the CIT

affirmed in Tatung Company, past

behavior constitutes substantial

evidence of expected future behavior.

The Committee claims that recent

market trends place pressure on Chun

Kee and Manho to reduce their prices in
17174 Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices

the United States and state this is

partially because Chun Kee and Manho

export only to the United States. There

is no evidence to suggest that

competition in the United States steel

wire rope industry is any more fierce

than in past years, during which Chun

Kee increased its sales of steel wire in

the United States and Manho’s sales

volume has fluctuated, both without

selling at prices below normal value.

Further, both Chun Kee and Manho sell

steel wire rope in countries other than

the Republic of Korea and the United

States and are not solely dependent on

the United States for financial viability

as suggested by the Committee. See

Home Market and Export Price

Verification of Chun Kee Steel & Wire

Rope Company at 3 and HM and Export

Price Verification of Manho Rope &

Wire, Ltd. at 3.

While the Committee argues that the

volatility of the Korean won and a

possible future appreciation of the

Korean won make it difficult to

conclude that it is not likely that these

respondents will resume sales at less

than normal value, neither Chun Kee

nor Manho have had above de minimis

weighted-average dumping margins over

the past three reviews during which the

Korean won has appreciated against the

U.S. dollar. During a period of a

depreciating Korean won, as the

Committee acknowledged has occurred

since the end of this review period,

there is even less pressure to engage in

less-than-normal-value pricing. Given

that the past appreciation of the Korean

won did not cause Chun Kee and

Manho to sell steel wire in the United

States at prices below normal value, we

have no basis to conclude that a

possible currency appreciation in the

future will cause them to change their

pricing practices. See Fresh Cut Flowers

at 63825. Further, while in Brass Sheet

and Strip we acknowledged that the

continued strengthening of the home

market currency provides an impetus to

resume sales at less than normal value

in the absence of an antidumping duty

order, this was only one of many

reasons to deny revocation of the

antidumping duty order. We stated in

Brass Sheet and Strip that the exchange

rate trend was one element in

determining the likelihood of

resumption of sales at less than normal

value. Further, in Brass Sheet and Strip,

we were concerned with a continuing

strengthening of the home market

currency whereas in this case the

Korean won is currently depreciating

relative to the U.S. dollar. See Brass

Sheet and Strip, 61 FR at 49731. The

present case is also distinct from

Titanium Sponge, where at the time of

the decision not to revoke the

antidumping duty order the Japanese

yen was appreciating against the U.S.

dollar.

Regarding the fluctuations of the

Korean won against the Japanese yen as

an influence on respondents’ costs, the

Committee did not point to any

evidence on the record in this review

that Chun Kee or Manho purchased any

inputs of steel wire rope from Japan.

Further, the Committee acknowledges

that, since the 1994/95 period, the

Korean won has appreciated against the

Japanese yen, thereby making purchases

of Japanese inputs less expensive. For

the three consecutive review periods

and during the volatility of the Korean

won against the Japanese yen, we have

consistently calculated a zero-percent

weighted-average dumping margin for

Manho and a 0.01 percent weightedaverage dumping margin for Chun Kee.

Finally, any changes in respondents’

input costs due to currency fluctuations

would be reflected in both the home

market and U.S. prices.

Moreover, the Committee provides no

support for its claim that, because we

have found Chun Kee and Manho to

have sold steel wire rope at prices below

cost in the home market, they are likely

to sell at prices at less than fair value

in the future. All of the evidence in this

case, as mentioned above, leads us to

believe that it is not likely that Chun

Kee and Manho will sell at prices below

the normal value in the future.

Finally, the Committee is incorrect in

citing Titanium Sponge to argue that the

Department must consider the fact that

Chun Kee’s weighted-average

antidumping duty margin has been de

minimis rather than zero in denying

revocation to Chun Kee. Titanium

Sponge does not imply that a de

minimis margin should be treated as

anything other than equivalent to a zero

margin for the purposes of eligibility for

revocation. In Titanium Sponge, 53 FR

at 26100, we stated only that the

contributing factors to our decision not

to revoke the antidumping duty order

include ‘‘the large surplus of titanium

sponge inventories, the decline in

purchasing power of the dollar against

the yen, and the minimal pricing

differential currently existing between

the U.S. and domestic market.’’ In fact,

in Color TVs, 55 FR at 47097, the

Department stated that it ‘‘considers a

de minimis margin to be equivalent to

a zero margin, and a weighted-average

de minimis margin to be equivalent to

zero for all sales, regardless of the actual

margin on individual sales, for purposes

of eligibility of revocation.’’

Chun Kee and Manho have each met

the requirement established by our

regulations of de minimis margins for

the requisite consecutive number of

years. In addition, each has agreed to

immediate reinstatement in the order if

we conclude that subsequent to the

partial revocation of the order, the

particular respondent sold the

merchandise at less than normal value.

Finally, based on the evidence on the

record of this review and conclusions

drawn from our experience with these

respondents in prior reviews, we

conclude that it is not likely that in the

future these respondents will sell the

subject merchandise at less than normal

value. Therefore, we are revoking the

order with respect to Chun Kee and

Manho.

Comment 2: The Committee claims

that, because the Department performed

the arm’s-length test on a customerspecific basis by comparing the average

net price to affiliated parties against

prices to unaffiliated parties, the

Department used sales to affiliated

parties which were found not to be

arm’s-length transactions in its

calculation of normal value. The

Committee asserts that the Department

must examine home market sales to

affiliated parties on a transaction-bytransaction basis and exclude those

particular sales which are found not to

be arm’s-length transactions. The

Committee maintains that the inclusion

of such sales is violative of the

controlling regulation, precedent and

the proposed regulations (citing 19 CFR

353.45(a), 19 CFR 351.403 (proposed

regulation), and Welded Carbon Steel

Pipe and Tube Products From Turkey:

Final Results of Antidumping Duty

Administrative Review, 55 FR 42230

(October 18, 1990) (Pipe and Tube)).

The Committee asserts, therefore, that

the Department must recalculate NV

excluding such sales by Chun Kee. The

Committee notes an apparent

discrepancy between the preliminary

results analysis memorandum and the

notice of Preliminary Results, the latter

of which suggests such sales were

excluded.

Respondents assert that sales to

affiliated parties are not automatically

removed from consideration as part of

the home market sales database and are

included in the margin calculation as

long as they are deemed to be arm’slength transactions (citing Connors Steel

Company v. United States, 527 F. Supp.

350, 354 (CIT 1981), and Usinor Sacilor

et al. v. United States, 872 F. Supp.

1000, 1002 (CIT 1994) (Usinor)).

Respondents state that the Department’s

99.5% arm’s-length test, which

compares the customer-specific average
Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices 17175

prices at which the respondent sells to

affiliated and unaffiliated customers, is

well established and note that Chun

Kee’s sales passed the test (citing

Tapered Roller Bearings and Parts

Thereof, Finished and Unfinished, From

Japan, and Tapered Roller Bearings,

Four Inches or Less in Outside

Diameter, and Components Thereof,

From Japan; Preliminary Results of

Antidumping Duty Administrative

Reviews and Partial Termination of

Administrative Reviews, 61 FR 57391,

57393 (November 6, 1996) (TRBs

Prelim.)). Respondents maintain that the

Department uses customer-specific

averages rather than individual sales to

ensure that the comparison is not

distorted by normal price fluctuations.

Respondents note that this practice has

been upheld by the Court of

International Trade (CIT).

Department’s Position: We disagree

with the Committee that we must

perform the arm’s-length test on a

transaction-by-transaction basis.

Performing the test in such a manner

would conflict with our long-standing

practice of using customer-specific

weighted-average prices (see, e.g.,

Antifriction Bearings (Other Than

Tapered Roller Bearings) and Parts

Thereof From France, et al.; Final

Results of Antidumping Duty

Administrative Reviews, Partial

Termination of Administrative Reviews,

and Revocation in Part of Antidumping

Duty Orders, 60 FR 10900, 10946 and

10947 (February 28, 1995); Industrial

Phosphoric Acid From Belgium; Final

Results of Antidumping Duty

Administrative Review, 61 FR 51424,

51425 (October 2, 1996); TRBs Prelim.,

61 FR at 57393–94). The Committee’s

reliance on Pipe and Tube to support its

position that average prices cannot be

used in an arm’s-length test is

misplaced. In Pipe and Tube, 55 FR at

42231, we merely confirmed our

practice of disregarding sales not made

at arm’s length; we did not expound on

the methodology for determining the

arm’s-length nature of such sales.

In addition, the CIT has implicitly

approved of our use of weighted-average

prices to conduct the test. In Usinor, we

used the same arm’s-length test as in the

instant review. In finding the

Department’s application of the arm’slength test reasonable on other grounds,

the CIT implicitly approved of the

Department’s practice of weightaveraging prices (Usinor, 872 F. Supp. at

1002–04). We believe that our

application of the test is reasonable and

have maintained our approach for the

final results.

Comment 3: The Committee argues

that the Department’s use of a 1.51

percent dumping margin as adverse

facts available for Boo Kook, Dong-Il

and Yeonsin undercuts the cooperationinducing purpose of the facts-available

provision of the statute. The Committee

contends that, instead of using the

highest rate available from any prior

segment of the proceeding, the

Department should apply a dumping

rate based on the rate calculated in the

petition of the original investigation

(148.94 percent) or the calculations set

forth in the Committee’s submissions to

the Department in the 1994/95

administrative review (23.5 percent).

The Committee states that, pursuant

to section 776(a) of the Act, if the

Department finds that an interested

party has not cooperated with the

Department’s request for information,

the Department may use an inference

that is adverse to the interests of that

party in selecting from facts available;

further, this adverse inference may be

based on information derived from the

petition or any other information placed

on the record. The Committee also

contends that the SAA states that the

Department does not need to prove that

the facts available that it selects

constitute the best alternative, but that

the facts available need only to be

information or inferences which are

reasonable to use under the

circumstances (citing H.R. Doc. 316,

Vol. 1, 103d Cong., 2d sess. 870 (1994)).

The Committee states that the SAA

provides that the Department may

employ an adverse inference about

missing information to ensure that the

non-responding party does not obtain a

more favorable result by failing to

cooperate that if it had cooperated fully.

It argues that it is apparent that

continuing use of the 1.51 percent rate

has failed to achieve the cooperationinducing purpose of the facts-available

rule. The Committee argues that Boo

Kook, Dong-Il and Yeonsin have

expressly failed to cooperate with the

Department’s request for information

and have never submitted a response to

the Department’s questionnaire in the

three reviews of this antidumping duty

order. It further claims that the 1.51

facts-available rate that the three

companies have received has remained

low enough to encourage them not to

respond to the Department’s requests for

information. The Committee also argues

that the Department’s rigid application

of the facts-available methodology

employed in prior reviews provides a

safe harbor for the companies that did

not respond in this proceeding and

allows the respondent to control the

proceeding. The Committee cites

Olympic Adhesives, Inc. v. United

States, 899 F.2d 1565, 1571–72 (Fed.

Cir. 1990) (Olympic Adhesives), in

arguing that parties should not be

allowed to control the magnitude of the

dumping margin by selectively

providing the Department with

information.

Department’s Position: We disagree

with the Committee that reliance on the

petition rate from the original

investigation or petitioner-supplied data

from the 1994/95 review as a basis for

facts available would be appropriate in

the context of this review.

The Department has broad discretion

in determining what constitutes facts

available in a given situation. Krupp

Stahl AG v. United States, 822 F. Supp

789, 792 (CIT 1993); see also AlliedSignal Aerospace Co. v. United States,

996 F.2d. 1185, 1191 (Fed. Cir. 1993)

(‘‘[b]ecause Congress has ‘explicitly left

a gap for the agency to fill’ in

determining what constitutes the [best

information available], the ITA’s

construction of the statute must be

accorded considerable deference,’’

citing Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467

U.S. 837, 833–44 (1984)).

In any given review, a respondent will

have knowledge of the antidumping

rates from the investigation and past

reviews but not of the rates that will be

established in the ongoing review.

Because under our facts-available policy

we consider the highest rate from the

current review as one possible source of

facts available, potentially

uncooperative respondents will

generally be less able to predict their

facts-available rate as the number of

participants in the ongoing review

increases. Thus, respondents that do not

participate and receive their own known

rates risk receiving a potentially much

higher unknown rate. Accordingly, this

uncertainty in the facts-available rate

which may be selected ordinarily

satisfies the cooperation-inducing

function of the facts-available provision.

In addition, respondents have an

incentive to respond to our request for

information because of the possibility of

eventual revocation of the antidumping

duty order with respect to the company.

A respondent with a rate above de

minimis that does not participate in the

administrative review is not eligible for

revocation. Hence, a further reason the

rate assigned to uncooperative

respondents in reviews in accordance

with our practice may be considered

adverse because it results in

respondents with a rate above de

minimis remaining subject to the order

without eligibility for revocation.

We recognize that there are instances

in which the uncooperative rate

resulting from our standard
17176 Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices

1As noted, although we have explained our

practice in terms of a two-tiered methodology in

pre-URAA reviews, the cases where we deviated

from this approach, as cited by the Committee,

involved first-tier, uncooperative respondents, and

our practice regarding the derivation of the

dumping margin assigned to uncooperative

companies has not changed.

methodology may not induce

respondents to cooperate in subsequent

segments of the proceeding. We

recognize that this case may be an

instance where our methodology may

no longer be inducing cooperation;

however, we are unable to make such a

determination based on the facts of this

record.

The few cases in which we have not

relied on our standard approach have

involved an extremely limited number

of participants and, therefore, a

consequently small number of rates

available for use as a basis for the

uncooperative rate.1 For instance, in

Sodium Thiosulfate from the People’s

Republic of China: Final Results of

Antidumping Duty Administrative

Review, 59 FR 12934 (March 8, 1993)

(Sodium Thiosulfate), we used

information supplied by the petitioner

to establish the uncooperative rate for

the only respondent that had shipments

of subject merchandise during the POR.

Similarly, in Silicon Metal From

Argentina: Final Results of

Antidumping Duty Administrative

Review, 58 FR 65336, 65337 (December

14, 1993) (Silicon Metal), we resorted to

petitioner-supplied data where we had

a calculated rate for only one firm: ‘‘[i]n

this instance, we have only Andina’s

rate from the LTFV investigation * * *.

Because Andina’s rate is also the ‘all

other’ rate, Silarsa would be assured a

rate no higher than Andina’s, the only

respondent who cooperated fully with

the Department in this administrative

review. The use of the uncooperative

BIA methodology, in this instance,

restricts the field of potential BIA rates

to the rate established for one firm.’’

Silicon Metal, 58 FR at 65336 and 65337

(emphasis added).

Our determination in Certain

Malleable Cast Iron Pipe Fittings from

Brazil; Final Results of Antidumping

Duty Administrative Review, 60 FR

41876 (August 14, 1995) (Pipe Fittings),

is a further example of a situation in

which the circumstances of the case

clearly demonstrated that the

uncooperative rate was not sufficient to

induce the respondent to cooperate. In

Pipe Fittings, we applied a petitionbased rate to a non-responsive company

that was the only company to have ever

been investigated or reviewed: ‘‘[we]

have only calculated one margin, which

was in the LTFV investigation. Due to

the unusual situation, we have

determined to use as BIA the simple

average of the rates from the petition.

* * * In not responding to our requests

for information, Tupy could be relying

upon our normal BIA practice to lock in

a rate that is capped at its LTFV rate’’

(see Pipe Fittings, 61 FR at 41877–78).

The concern in such cases with

respect to the uncooperative-rate

methodology is that the lack of past

rates, as well as the small number of

participants in the current review, could

allow a respondent in such a review to

manipulate the proceeding by choosing

not to comply with our requests for

information. In such cases the

cooperation-inducing function of the

facts-available provision of the Act may

not be achieved by use of the

uncooperative-rate methodology, in

which case the Department will resort to

alternatives sources in determining the

appropriate rate for uncooperative

respondents. That is not to say that we

will deviate from our standard

uncooperative-rate methodology only

when those case facts are present.

These cases establish that we will

consider, on a case-by-case basis as

appropriate, petitioner-supplied data in

situations involving a number of

calculated rates insufficient to induce

cooperation by respondents in the

proceeding. Unlike the instant case, in

these cases, we did not have rates for

more than one company and therefore

determined that the use of a BIA rate

higher than the highest rate in the

history of the case was appropriate to

encourage future cooperation. However,

as expressed above, this case may be an

instance where deviation from our

standard uncooperative-rate

methodology might be appropriate with

the proper facts of record.

While the Committee cites Olympic

Adhesives in support of its position that

a party should not be allowed to control

the proceeding by using evasive tactics,

this case essentially addresses whether

a company should be assigned facts

available (formerly the best information

available) and not the magnitude of the

facts-available rate as is the issue in this

case. In the instant case we are assigning

facts available to the three abovementioned companies, whereas in

Olympic Adhesives the court found that

we should not apply facts available to

the participating company in the

relevant case.

Because we have calculated rates from

three companies in the LTFV final

determination, eight companies in the

1992/94 review, six companies in the

1994/95 review, and six companies in

this review, the concern over potential

manipulation of antidumping rates cited

in Sodium Thiosulfate, Silicon Metal,

and Pipe Fittings is less likely to be

present in this review. As mentioned

above, based on the facts of this record,

we feel that the facts-available rate in

this case satisfies the cooperationinducing function of the facts-available

provision and does not allow the three

non-responding companies in this

review to control the proceeding.

However, the facts-available rate

available to us in this review may no

longer be having the desired effect of

inducing cooperation by potential

respondents. Therefore, in the event a

subsequent review is conducted, we

will collect information bearing on this

issue to permit us to make a

determination on the cooperationinducing effect of our rate and, if

necessary, adjust our rate accordingly.

Final Results of Review

We determine the following

percentage weighted-average margins

exist for the period March 1, 1995,

through February 29, 1996:

Manufacturer/exporter Margin

(percent)

Boo Kook Corporation .............. 1.51

Chun Kee Steel & Wire Rope

Co., Ltd .................................. 0.01

Chung Woo Rope Co., Ltd ....... 0.24

Dong-Il Steel Manufacturing

Co., Ltd .................................. 1.51

Hanboo Wire Rope, Inc ............ 1.51

Kumho Wire Rope Mfg. Co.,

Ltd ......................................... 0.01

Manho Rope & Wire, Ltd .......... 0.00

Myung Jin Co ............................ 1 1.51

Seo Jin Rope ............................ 1.51

Ssang Yong Steel Wire Co.,

Ltd ......................................... 0.01

Sung Jin .................................... 0.03

Yeonsin Metal ........................... 1.51

1 No shipments subject to this review. Rate

is from the last relevant segment of the proceeding in which the firm had shipments/sales.

The Department shall determine, and

the Customs Service shall assess,

antidumping duties on all appropriate

entries. Individual differences between

export price and normal value may vary

from the percentages stated above. The

Department will issue appraisement

instructions on each exporter directly to

the Customs Service.

Furthermore, the following 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 these final results of

this administrative review, as provided

by section 751(a)(1) of the Act. (1) For

Chun Kee and Manho, the revocation of

the antidumping duty order applies to

all entries of subject merchandise
Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Notices 17177

entered, or withdrawn from warehouse,

for consumption on or after March 1,

1996. The Department will order the

suspension of liquidation ended for all

such entries and will instruct the

Customs Service to release any cash

deposits or bonds. The Department will

further instruct the Customs Service to

refund with interest any cash deposits

on post-March 1, 1995 entries. (2) The

cash deposit rates for the other reviewed

companies will be those rates

established above (except that, if the

rate for a firm is de minimis, i.e., less

than 0.5 percent, a cash deposit of zero

will be required for that firm). (3) For

previously reviewed or investigated

companies not listed above, the cash

deposit rate will continue to be the

company-specific rate published for the

most recent period. (4) If the exporter is

not a firm covered in this review, a prior

review, or the original 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

merchandise. (5) If neither the exporter

nor the manufacturer is a firm covered

in this or any previous review or the

original investigation, the cash deposit

rate will be 1.51 percent, the ‘‘All

Others’’ rate established in the LTFV

Final Determination (58 FR 11029).

These deposit requirements shall

remain in effect until publication of the

final results of the next administrative

review.

This notice also serves as a final

reminder to importers of their

responsibility under 19 CFR 353.26 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.

This notice also serves as a reminder

to parties subject to administrative

protective orders (APOs) of their

responsibility concerning the

disposition of proprietary information

disclosed under APO in accordance

with 19 CFR 353.34(d)(1). Timely

written notification of the return/

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 administrative review and notice

are in accordance with section 751(a)(1)

and 751(d) of the Act (19 U.S.C.

1675(a)(1)) and 19 CFR 353.22 and 19

CFR 353.25.

Dated: April 2, 1997.

Robert S. LaRussa,

Acting Assistant Secretary, for Import

Administration.

[FR Doc. 97–9114 Filed 4–8–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

U.S. Automotive Parts Advisory

Committee; Closed Meeting

AGENCY: International Trade

Administration, Commerce.

ACTION: Closed meeting of U.S.

Automotive Parts Advisory Committee.

SUMMARY: The U.S. Automotive Parts

Advisory Committee (the ‘‘Committee’’)

advises U.S. Government officials on

matters relating to the implementation

of the Fair Trade in Auto Parts Act of

1988. The Committee: (1) Reports

annually to the Secretary of Commerce

on barriers to sales of U.S.-made auto

parts and accessories in Japanese

markets; (2) assists the Secretary in

reporting to the Congress on the

progress of sales of U.S.-made auto parts

in Japanese markets, including the

formation of long-term supplier

relationships; (3) reviews and considers

data collected on sales of U.S.-made

auto parts to Japanese markets; (4)

advises the Secretary during

consultations with the Government of

Japan on these issues; and (5) assists in

establishing priorities for the

Department’s initiatives to increase

U.S.-made auto parts sales to Japanese

markets, and otherwise provide

assistance and direction to the Secretary

in carrying out these initiatives. At the

meeting, committee members will

discuss specific trade and sales

expansion programs related to U.S.-

Japan automotive parts policy.

DATE AND LOCATION: The meeting will be

held on April 28, 1997 from 10:30 a.m.

to 3 p.m. at the U.S. Department of

Commerce in Washington, DC.

FOR FURTHER INFORMATION CONTACT: Dr.

Robert Reck, Office of Automotive

Affairs, Trade Development, Room

4036, Washington, DC. 20230,

telephone: (202) 482–1418.

SUPPLEMENTARY INFORMATION: The

Assistant Secretary for Administration,

with the concurrence of the General

Counsel formally determined on July 5,

1994, pursuant to section 10(d) of the

Federal Advisory Act, as amended, that

the series of meetings or portions of

meetings of the Committee and of any

subcommittee thereof, dealing with

privileged or confidential commercial

information may be exempt from the

provisions of the Act relating to open

meeting and public participation therein

because these items are concerned with

matters that are within the purview of

5 U.S.C. 552b (c) (4) and (9) (B). A copy

of the Notice of Determination is

available for public inspection and

copying in the Department of Commerce

Records Inspection Facility, Room 6020,

Main Commerce.

Dated: April 2, 1997.

Henry P. Misisco,

Director, Office of Automotive Affairs.

[FR Doc. 97–9084 Filed 4–8–97; 8:45 am]

BILLING CODE 3510–DR–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

Evaluation of State Coastal

Management Programs and National

Estuarine Research Reserves

AGENCY: Office of Ocean and Coastal

Resource Management, National Ocean

Service, National Oceanic and

Atmospheric Administration (NOAA),

DOC.

ACTION: Notice of Availability of

Evaluation Final Findings.

SUMMARY: Notice is hereby given of the

availability of the final evaluation

findings for the Virginia, Maine, New

Hampshire, Rhode Island, and Oregon

Coastal Management Programs, and

Sapelo Island (Georgia) National

Estuarine Research Reserve (NERR).

Sections 312 and 315 of the Coastal

Zone Management Act of 1972 (CZMA),

as amended, require a continuing

review of the performance of coastal

states with respect to approved coastal

management programs and the

operation and management of NERRs.

The States of Virginia, Maine, New

Hampshire, Rhode Island, and Oregon

were found to be implementing and

enforcing their Federally approved

coastal management programs,

addressing the national coastal

management objectives identified in

CZMA section 303(2)(A)–(K), and

adhering to the programmatic terms of

their financial assistance awards.

Sapelo Island NERR was found to be

adhering to programmatic requirements

of the NERR system. Copies of these

final evaluation findings may be

obtained upon written request from:

Vickie Allin, Chief, Policy Coordination

Division, Office of Ocean and Coastal

Resource Management, NOS/NOAA,

1305 East-West Highway, 11th Floor,