[Federal Register Volume 73, Number 21 (Thursday, January 31, 2008)]
[Notices]
[Pages 5794-5801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-415]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-580-859]


Notice of Preliminary Determination of Sales at Less Than Fair 
Value and Postponement of Final Determination: Light-Walled Rectangular 
Pipe and Tube From the Republic of Korea

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

EFFECTIVE DATE: January 31, 2008.
SUMMARY: The U.S. Department of Commerce (the Department) preliminarily 
determines that light-walled rectangular pipe and tube from the 
Republic of Korea is being, or is likely to be, sold in the United 
States at less than fair value (LTFV), as provided in section 733(b) of 
the Tariff Act of 1930, as amended (the Tariff Act). The estimated 
margins of sales at LTFV are listed in the ``Suspension of 
Liquidation'' section of this notice. Interested parties are invited to 
comment on this preliminary determination. Pursuant to a request from 
Nexteel Co., Ltd. (Nexteel), we are postponing for 60 days the final 
determination and extending provisional measures from a four-month 
period to not more than six months. Accordingly, we will make our final 
determination not later than 135 days after publication of the 
preliminary determination.

FOR FURTHER INFORMATION CONTACT: David Cordell, (Kukje Steel Co., 
Ltd.), Mark Flessner (Nexteel Co., Ltd.), or Robert James, AD/CVD 
Operations, Office 7, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0408, (202) 482-6312, or (202) 482-0649, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On July 17, 2007, the Department initiated the antidumping duty 
investigation of light-walled rectangular pipe and tube from the 
Republic of Korea. See Initiation of Antidumping Duty Investigations: 
Light-Walled Rectangular Pipe and Tube from the Republic of Korea, 
Mexico, Turkey, and the People's Republic of China, (Initiation 
Notice), 72 FR 40274 (July 24, 2007). The Petitioners in this 
investigation are Allied Tube and Conduit, Atlas Tube, Bull Moose Tube 
Company, California Steel and Tube, EXLTUBE, Hannibal Industries, 
Leavitt Tube Company, Maruichi American Corporation, Searing 
Industries, Southland Tube, Vest Inc., Welded Tube, and Western Tube 
and Conduit (Petitioners).
    The Department set aside a period of time for parties to raise 
issues regarding product coverage and encouraged all parties to submit 
comments. See Initiation Notice, 72 FR 40274, 40275 (July 24, 2007). No 
party submitted comments on the scope.
    On August 28, 2007, the United States International Trade 
Commission (the Commission) preliminarily determined there is a 
reasonable indication that imports of light-walled rectangular pipe and 
tube from Korea, Mexico and Turkey are materially injuring the U.S. 
industry and notified the Department of its findings. See Light-Walled 
Rectangular Pipe and Tube From China, Korea, Mexico, and Turkey, 
Investigation Nos. 701-TA-449 and 731-TA-1118-1121 (Preliminary), 72 FR 
49310 (August 28, 2007).
    Section 777A(c)(1) of the Tariff Act directs the Department to 
calculate individual dumping margins for each known exporter and 
producer of the subject merchandise. The Department identified a large 
number of producers and exporters of light-walled rectangular pipe and 
tube from the Republic of Korea (Korea) and determined that it was not 
practicable to examine each known exporter/producer of the subject 
merchandise, as provided in section 777A(c)(2) of the Tariff Act. The 
Department sent quantity and value (Q&V) questionnaires to the 
companies identified in the petition, as well as to other companies 
identified during our analysis. On July 31, 2007, the Department sent 
Q&V questionnaires to the following companies: Ahshin Pipe & Tube, 
Dong-A Steel Pipe Co. Ltd., Han Gyu Rae Steel, Co., Ltd., HiSteel Co. 
Ltd., Jinbang Steel Co. Ltd., Joong Won, Kukje Steel Co. (Kukje), Ltd., 
Miju Steel Mfg. Co. Ltd., Nexteel, SeAH Steel Corporation, Ltd. (SeAH), 
and Yujin Steel Industry Co.
    Ahshin Pipe & Tube mailed its response by first class mail dated 
August 20, 2007, but that letter was not

[[Page 5795]]

submitted as required through our Central Records Unit, did not include 
a complete response to the Department's Q&V questionnaire or include 
the required certifications, and was not served on all interested 
parties. Consequently, the response did not comport with 19 CFR 
351.103, 351.302(d)(1), 351.303(f)(2) and 351.303(g), and was returned 
to Ahshin Pipe & Tube on September 7, 2007.
    On August 27, 2007 and September 28, 2007, the Department requested 
that Han Gyu Rae Steel Co., Ltd., (Han Gyu Rae) resubmit its public 
version of its response to the Q&V questionnaire which it had submitted 
on August 17, 2007, because a proper public version was not provided. 
In its September 28, 2007, letter the Department warned Han Gyu Rae 
that it may not accept the response as currently filed and that the 
Department may apply facts available in accordance with section 776 of 
the Tariff Act, and pursuant to 19 CFR 351.308. The Department received 
no reply from Han Gyu Rae and thus returned its August 17, 2007, 
submission on November 9, 2007. Furthermore, the Department did not 
receive any response at all to either its July 31, 2007, quantity and 
value questionnaire or its August 16, 2007, follow-up letter from the 
following companies: Dong-A Steel Pipe Co. Ltd., HiSteel Co. Ltd., 
Jinbang Steel Co. Ltd., Joong Won, Miju Steel Mfg. Co. Ltd., and Yujin 
Steel Industry Co.\1\
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    \1\ The Department sent its questionnaires and its follow up 
letter via an international delivery service. Records show each of 
the companies in question received and signed for the July 31, 2007, 
quantity and value questionnaire and the August 16, 2007, follow-up 
letter.
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    Three respondents--SeAH, Kukje and Nexteel--responded to the 
Department's Q&V questionnaire. Kukje and Nexteel accounted for the 
largest volume of subject merchandise exported to the United States 
during the period of investigation (POI). Hence, these two firms were 
selected as mandatory respondents pursuant to section 777A(c)(2)(1)(B) 
of the Tariff Act. See the September 5, 2007, Memorandum to Deputy 
Assistant Secretary Stephen J. Claeys, entitled ``Antidumping Duty 
Investigation on Light-Walled Rectangular Pipe and Tube from the 
Republic of Korea (Korea) (A-580-859), Respondent Selection'' 
(Respondent Selection Memorandum). We issued antidumping questionnaires 
to Kukje and Nexteel on September 7, 2007.
    The Department received the Section A response from Kukje on 
October 5, 2007, and from Nexteel on October 10, 2007. Petitioners 
provided comments on Kukje's and Nexteel's Section A responses on 
October 16, 2007. On October 19, 2007, the Department issued Nexteel a 
supplemental questionnaire concerning its October 10, 2007, Section A 
response. On October 22, 2007, Kukje informed the Department that Kukje 
was unable to respond further to the antidumping questionnaire. We 
received the Sections B and C responses from Nexteel on October 29, 
2007. Nexteel also responded voluntarily to Section D, Cost of 
Production, in this submission.
    On November 9, 2007, Petitioners provided comments on Nexteel's 
Sections B and C response, and submitted a cost allegation with respect 
to Nexteel. On November 27, 2007, the Department issued a supplemental 
questionnaire to Nexteel concerning Nexteel's Sections B and C 
response, to which Nexteel responded on December 19, 2007.
    On December 7, 2007, the Department initiated a cost investigation 
on Nexteel. See memorandum from Mark Flessner, Case Analyst, and 
Christopher J. Zimpo, Accountant, to Richard O. Weible, Director, 
Office 7, entitled ``Petitioners'' Allegation of Sales Below the Cost 
of Production for Nexteel Co. Ltd.,'' dated December 7, 2007 (Cost 
Allegation Memorandum). On December 21, 2007, the Department issued a 
supplemental questionnaire to Nexteel concerning Nexteel's Section D 
response, to which Nexteel responded on January 10, 2008.
    On December 26, 2007, petitioners timely filed with the Department 
an allegation of targeted dumping for Nexteel. Nexteel filed comments 
regarding petitioners' allegation on January 3, 2008. Upon review of 
petitioners' allegation, the Department determined that further 
information was needed in order to adequately analyze petitioners' 
allegation. The Department issued a supplemental questionnaire to 
petitioners on January 14, 2008, requesting that they address 
deficiencies identified by the Department. See Letter from Richard O. 
Weible, Director, Office 7, to Petitioners, dated January 14, 2008. 
Because there was a need for supplemental information regarding the 
allegation, we do not have sufficient bases for making a finding of 
targeted dumping prior to the January 23, 2008, deadline for issuance 
of the preliminary determination. We intend to address the allegation 
in full upon receipt of a satisfactory response by Petitioners to our 
request for additional information.
    On October 19, 2007, the Petitioners requested the Department 
postpone the preliminary determination by 50 days pursuant to 19 CFR 
351.205(e). The Department published a notice of postponement on 
November 14, 2007, which set the new deadline for the preliminary 
determination at January 23, 2008. See Light-Walled Rectangular Pipe 
and Tube from Mexico, Turkey, and the Republic of Korea: Postponement 
of Preliminary Determination of Antidumping Duty Investigations, 72 FR 
64044 (November 14, 2007).

Period of Investigation

    The POI is April 1, 2006, to March 31, 2007.

Scope of Investigation

    The merchandise that is the subject of this investigation is 
certain welded carbon quality light-walled steel pipe and tube, of 
rectangular (including square) cross section, having a wall thickness 
of less than 4 mm.
    The term carbon-quality steel includes both carbon steel and alloy 
steel which contains only small amounts of alloying elements. 
Specifically, the term carbon-quality includes products in which none 
of the elements listed below exceeds the quantity by weight 
respectively indicated: 1.80 percent of manganese, or 2.25 percent of 
silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 
1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of 
lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 
percent of molybdenum, or 0.10 percent of niobium, or 0.15 percent 
vanadium, or 0.15 percent of zirconium. The description of carbon-
quality is intended to identify carbon-quality products within the 
scope. The welded carbon-quality rectangular pipe and tube subject to 
this investigation is currently classified under the Harmonized Tariff 
Schedule of the United States (HTSUS) subheadings 7306.61.50.00 and 
7306.61.70.60. While HTSUS subheadings are provided for convenience and 
Customs purposes, our written description of the scope of this 
investigation is dispositive.

Model Match

    In accordance with section 771(16) of the Tariff Act, all products 
produced by the respondents covered by the description in the Scope of 
Investigation section, above, and sold in Korea during the POI are 
considered to be foreign like products for purposes of determining 
appropriate product comparisons to U.S. sales.
    On August 16, 2007, the Department asked all parties in the 
investigation of light-walled rectangular pipe and tube from the 
Republic of Korea and in the concurrent antidumping duty investigations 
of light-walled

[[Page 5796]]

rectangular pipe and tube from Mexico, Turkey, and the People's 
Republic of China, for comments on the appropriate product 
characteristics for defining individual products; parties in this 
investigation and in the concurrent antidumping duty investigations of 
light-walled rectangular pipe and tube from Mexico and Turkey were also 
invited to comment on the appropriate model matching methodology. See 
Letter from Richard Weible, Director, Office 7, dated August 16, 2007. 
The Department received comments from the Mexican company Perfiles y 
Herrajes LM on August 23, 2007; from the Mexican companies Productos 
Laminados de Monterrey S.A. de C.V. and Prolamsa USA, Inc. on August 
24, 2007 August 27, 2007 and September 4, 2007; from the Turkish 
company Noksel Celik Boru Sanayi A.S. on August 24, 2007; from the 
Chinese producer/exporter Zhangjiagang Zhongyuan Pipe-Making Co., Ltd.; 
and from the Petitioners on August 24, 2007. The Department did not 
make any changes to its proposed characteristics and model matching 
methodology as a result of the comments submitted by parties.
    We have relied on six criteria to match U.S. sales of subject 
merchandise to comparison market sales of the foreign like product: 
steel input type, whether metallic coated or not, whether painted or 
not, perimeter, wall thickness and shape. Where there were no sales of 
identical merchandise in the home market made in the ordinary course of 
trade to compare to U.S. sales, we compared U.S. sales to the next most 
similar foreign like product on the basis of the characteristics listed 
above.

Use of Facts Otherwise Available

    For the reasons discussed below, we determine the use of adverse 
facts available (AFA) is appropriate for the preliminary determination 
with respect to the following nine companies: Dong-A Steel Pipe Co. 
Ltd., HiSteel Co. Ltd., Jinbang Steel Co. Ltd., Joong Won, Miju Steel 
Mfg. Co. Ltd., Yujin Steel Industry Co., Ahshin Pipe & Tube, Han Gyu 
Rae, and Kukje. As noted in the Supplementary Information section 
above, the first six companies failed to respond to the Department's 
Q&V questionnaire and to the Department's follow up letter of August 
16, 2007. Ahshin Pipe & Tube submitted an improper, incomplete, and 
untimely Q&V questionnaire response that the Department returned; Han 
Gyu Rae failed to resubmit its August 17, 2007 Q&V response and the 
Department returned Han Gyu Rae's Q&V submission on November 9, 2007. 
On October 22, 2007, Kukje informed the Department that it was unable 
to respond further to the antidumping questionnaire.
    Section 776(a)(2) of the Tariff 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, significantly impedes a 
proceeding under this title, or provides such information but the 
information cannot be verified as provided in 782(I), the administering 
authority shall use, subject to section 782(d) of the Tariff Act, facts 
otherwise available in reaching the applicable determination. Section 
782(d) of the Tariff Act provides that, if the administering authority 
determines 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 Tariff Act states further 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.
    In this case, Dong-A Steel Pipe Co. Ltd., HiSteel Co. Ltd., Jinbang 
Steel Co. Ltd., Joong Won, Miju Steel Mfg. Co. Ltd., Yujin Steel 
Industry Co., Ahshin Pipe & Tube, and Han Gyu Rae all failed to provide 
necessary information by the deadlines for submission of the 
information and/or in the form or manner requested. Thus, for these 
eight companies in reaching our preliminary determination, pursuant to 
sections 776(a)(2)(A), (B), and (C) of the Tariff Act, we have based 
the dumping margin on facts otherwise available.
    Kukje, one of the mandatory respondents, did not provide pertinent 
information we requested that is necessary to calculate an antidumping 
margin for the preliminary determination. Specifically, Kukje failed to 
provide a complete response to our questionnaire, thereby withholding, 
among other things, home-market and U.S. sales information that is 
necessary for reaching the applicable determination, pursuant to 
section 776(a)(2)(A) of the Tariff Act. Thus, in reaching our 
preliminary determination, pursuant to sections 776(a)(2)(A), (B), and 
(C) of the Tariff Act, we have based the dumping margin for Kukje on 
facts otherwise available.

Application of Adverse Inferences for Facts Available

    According to section 776(b) of the Tariff Act, if the Department 
finds that an interested party fails to cooperate by not acting to the 
best of its ability to comply with requests for information, the 
Department may use an inference that is adverse to the interests of 
that party in selecting from the facts otherwise available. See Notice 
of Final Results of Antidumping Duty Administrative Review: Stainless 
Steel Bar from India, 70 FR 54023, 54025-26 (September 13, 2005); see 
also Notice of Final Determination of Sales at Less Than Fair Value and 
Final Negative Critical Circumstances: Carbon and Certain Alloy Steel 
Wire Rod from Brazil, 67 FR 55792, 55794-96 (August 30, 2002). It is 
the Department's practice to apply adverse inferences to ensure that 
the party does not obtain a more favorable result by failing to 
cooperate than if it had cooperated fully. See, e.g., id. Furthermore, 
``affirmative evidence of bad faith 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, 
27340 (May 19, 1997); see also Nippon Steel Corp. v. United States, 337 
F.3d 1373, 1382-83 (Fed. Cir. 2003) (Nippon); see also Certain 
Polyester Staple Fiber from Korea: Final Results of the 2005-2006 
Antidumping Duty Administrative Review, 72 FR 69663, 69664 (December 
10, 2007).
    Although the Department provided all respondents, including Dong-A 
Steel Pipe Co. Ltd., HiSteel Co. Ltd., Jinbang Steel Co. Ltd., Joong 
Won, Miju Steel Mfg. Co. Ltd., Yujin Steel Industry Co., Ahshin Pipe & 
Tube, Han Gyu Rae and Kukje, with notice informing them of the 
consequences of their failure to respond adequately to the 
questionnaire in this case, pursuant to section 782(d) of the Tariff 
Act, the companies listed above did not respond as requested. This 
constitutes a failure on the part of these companies to cooperate to 
the best of their ability to comply with a request for information by 
the Department within the meaning of section 776(b) of the Tariff 
Act.\2\ Based on the above, the

[[Page 5797]]

Department has preliminarily determined that Dong-A Steel Pipe Co. 
Ltd., HiSteel Co. Ltd., Jinbang Steel Co. Ltd., Joong Won, Miju Steel 
Mfg. Co. Ltd., Yujin Steel Industry Co., Ahshin Pipe & Tube, Han Gyu 
Rae and Kukje failed to cooperate to the best of their ability and, 
therefore, in selecting from among the facts otherwise available, an 
adverse inference is warranted. See, e.g., 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) (the Department applied total AFA where the respondent failed 
to respond to the antidumping questionnaire).
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    \2\ As noted earlier, the Department sent its quantity and value 
questionnaires and its follow up leeter via an international 
delivery service and records show that each of the companies in 
question received and signed for the July 31, 2007, quantity and 
value questionnaire and the August 16, 2007, follow-up letter.
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Selection and Corroboration of Information Used as Facts Available

    Where the Department applies AFA because a respondent failed to 
cooperate by not acting to the best of its ability to comply with a 
request for information, section 776(b) of the Tariff Act authorizes 
the Department to rely on information derived from the petition, a 
final determination, a previous administrative review, or other 
information placed on the record. See also 19 CFR 351.308(c). It is the 
Department's practice to use the highest rate from the petition in an 
investigation when a respondent fails to act to the best of its ability 
to provide the necessary information. See, e.g., Notice of Preliminary 
Determination of Sales at Less Than Fair Value and Postponement of 
Final Determination: Purified Carboxymethylcellulose From Finland, 69 
FR 77216 (December 27, 2004) (unchanged in Notice of Final 
Determination of Sales at Less Than Fair Value: Purified 
Carboxymethylcellulose From Finland, 70 FR 28279 (May 17, 2005)). 
Therefore, because an adverse inference is warranted, we have assigned 
to Dong-A Steel Pipe Co. Ltd., HiSteel Co. Ltd., Jinbang Steel Co. 
Ltd., Joong Won, Miju Steel Mfg. Co. Ltd., Yujin Steel Industry Co., 
Ahshin Pipe & Tube, Han Gyu Rae and Kukje the highest margin alleged in 
the petition, as referenced in the Initiation Notice, of 30.66 percent. 
See Initiation Notice at 40278.
    When using facts otherwise available, section 776(c) of the Tariff 
Act provides that when the Department relies on secondary information 
(such as the petition) rather than on information obtained in the 
course of an investigation, it must corroborate, to the extent 
practicable, information from independent sources that are reasonably 
at its disposal.
    To ``corroborate'' means that the Department will satisfy itself 
that the secondary information to be used has probative value. See 
Statement of Administrative Action accompanying the Uruguay Round 
Agreements Act, H.R. Doc. No. 103-316, vol. 1 (1994) at 870 (SAA), 
reprinted in 1994 U.S.C.C.A.N. 4040, 4198-4199. As stated in 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, 57392 (November 6, 1996) (unchanged in 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 Termination in Part, 62 FR 11825, 11843 
(March 13, 1997)), to corroborate secondary information, the Department 
will examine, to the extent practicable, the reliability and relevance 
of the information used. The Department's regulations state that 
independent sources used to corroborate such evidence may include, for 
example, published price lists, official import statistics and customs 
data, and information obtained from interested parties during the 
particular investigation. See 19 CFR 351.308(d).
    For the purposes of this investigation, to the extent appropriate 
information was available, we reviewed the adequacy and accuracy of the 
information in the Petition during our pre-initiation analysis and for 
purposes of this preliminary determination. See Initiation Checklist. 
We examined evidence supporting the calculations in the Petition to 
determine the probative value of the margins alleged in the Petition 
for use as AFA for purposes of this preliminary determination. During 
our pre-initiation analysis we examined the key elements of the export 
price and normal value calculations used in the Petition to derive 
margins. During our pre-initiation analysis we also examined 
information from various independent sources provided either in the 
Petition or in supplements to the Petition that corroborates key 
elements of the export price and normal value calculations used in the 
Petition to derive estimated margins.
    Specifically, the Petitioners calculated an export price using U.S. 
price quotes it obtained for light-walled rectangular pipe and tube 
from Korea. These price quotes identify the price that the first U.S. 
purchaser unaffiliated with the foreign producer, i.e., the 
international trader/importer, offered to its customer. The Petitioners 
also calculated a second export price using the average monthly Customs 
Unit Values (AUVs) ((Free Alongside Ship) (F.A.S.)) of light-walled 
rectangular pipe and tube from Korea for consumption in the United 
States, classified under HTSUS numbers 7306.60.50.00 and 7306.61.50.00, 
gathered from the Bureau of the Census IM145 import statistics. We then 
compared the U.S. price quote to the AUVs for this period and confirmed 
that the value of the U.S. price quote was consistent with the AUV's. 
Further, we obtained no other information that would make us question 
the reliability of the pricing information provided in the Petition.
    The Petitioners adjusted export prices for international freight 
and dealer mark-up. The Petitioners used the difference between the 
F.A.S. and C.I.F. AUVs for imports from Korea to the United States to 
calculate international freight costs. See Petition at page II-10; see 
also July 6, 2007 Supplement to the Petition at 6. These data are from 
the U.S. Customs and Border Protection (CBP) and the U.S. Census 
Bureau, which are sources of information that we consider reliable. 
See, e.g., Notice of Preliminary Determination of Sales at Less Than 
Fair Value: Superalloy Degassed Chromium from Japan, 70 FR 48538, 48540 
(August 18, 2005), (unchanged in Notice of Final Determination of Sales 
at Less Than Fair Value: Superalloy Degassed Chromium from Japan, 70 FR 
65886 (November 1, 2005)). Further, we obtained no other information 
that would make us question the reliability of the adjusted information 
provided in the Petition. The Petitioners estimated the distributor 
mark-up based on Searing Industries sales personnel's knowledge of 
importer's mark-ups in the domestic light-walled rectangular tubing 
industry. The Petitioners provided an affidavit from persons attesting 
to the validity of the distributor mark-up value the Petitioners used 
in the calculation of net U.S. price. See Initiation Checklist at 9.
    Based on our examination of the aforementioned information, we 
consider the Petitioners' calculation of net U.S. prices corroborated.
    With respect to normal value, the Petitioners derived Korean home 
market prices from a January 2007 edition of the Korean Metal Journal, 
a recognized industry journal; no evidence on the

[[Page 5798]]

record questions the validity of this source. Two series of prices were 
listed: a ``consumer'' price (based on destination) and a ``wholesale 
price.'' As a conservative measure, the lower-valued wholesale price 
was selected; this is more reflective of sales to distributors. Prices 
were quoted in won per meter and were converted into U.S. dollars using 
an average dollar weight for the proposed POI. The prices were also 
converted from meters to hundred-pound-weight (cwt), as cwt is the 
weight by which the subject merchandise is typically sold in the United 
States. Petitioners claim the delivery term for the wholesale price is 
ex-factory as demonstrated by the single price for all regions of the 
country, whereas consumer prices vary by different regions of the 
country suggesting the inclusion of freight. Petitioners note the 
products for which they obtained U.S. prices fall within the product 
category used for Normal Value (NV) from the Korean Metal Journal. See 
Volume II of the Petition at pages 9-10 and Exhibits II 21-23 and 
Volume II of the Supplement to the Petition dated July 6, 2007 at pages 
1-2 and Exhibit 1.
    Based on our examination of the aforementioned information, we 
consider the Petitioners' calculation of net home market prices 
corroborated.
    We also examined information obtained from interested parties to 
corroborate the home market and U.S. prices. Margin percentages 
calculated for Nexteel exceeded those from the Petition.
    Therefore, because we confirmed the accuracy and validity of the 
information underlying the derivation of margins in the Petition by 
examining source documents, publicly available information, and primary 
information submitted by respondent Nexteel, we preliminarily determine 
that the margins in the Petition are reliable for the purposes of this 
investigation.
    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 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.
    In American Silicon Technologies v. United States, 273 F. Supp. 2d 
1342, 1346 (CIT 2003), the court affirmed Commerce's adverse facts-
available rate, noting that it bore a ``rational relationship'' to the 
respondent's ``commercial practices,'' and was, therefore, relevant. As 
described above, in the pre-initiation stage of this investigation, we 
confirmed the calculation of margins in the Petition reflects 
commercial practices of the particular industry during the period of 
investigation. Further, no information has been presented in the 
investigation that calls into question the relevance of this 
information. As such, we preliminarily determine the highest margin in 
the Petition, which we determined during our pre-initiation analysis 
was based on adequate and accurate information and which we have 
corroborated for purposes of this preliminary determination, is 
relevant as the adverse facts-available rate for Dong-A Steel Pipe Co. 
Ltd., HiSteel Co. Ltd., Jinbang Steel Co. Ltd., Joong Won, Miju Steel 
Mfg. Co. Ltd., Yujin Steel Industry Co., Ahshin Pipe & Tube, Han Gyu 
Rae and Kukje in this investigation.
    Similar to our position in Polyethylene Retail Carrier Bags from 
Thailand: Preliminary Results of Antidumping Duty Administrative 
Review, 71 FR 53405, 53407 (September 11, 2006) (unchanged in 
Polyethylene Retail Carrier Bags from Thailand: Final Results of 
Antidumping Duty Administrative Review, 72 FR 1982 (January 17, 2007)), 
because this is the first proceeding involving these companies, there 
are no probative alternatives. Accordingly, by using information that 
was corroborated in the pre-initiation stage of this investigation and 
preliminarily determined to be relevant to Dong-A Steel Pipe Co. Ltd., 
HiSteel Co. Ltd., Jinbang Steel Co. Ltd., Joong Won, Miju Steel Mfg. 
Co. Ltd., Yujin Steel Industry Co., Ahshin Pipe & Tube, Han Gyu Rae and 
Kukje in this investigation, we have corroborated the adverse facts-
available rate ``to the extent practicable.'' See section 776(c) of the 
Tariff Act, 19 CFR 351.308(d), and NSK Ltd. v. United States, 346 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''). Therefore, we find that the 
estimated margin of 30.66 percent in the Initiation Notice has 
probative value. Consequently, in selecting AFA with respect to Dong-A 
Steel Pipe Co. Ltd., HiSteel Co. Ltd., Jinbang Steel Co. Ltd., Joong 
Won, Miju Steel Mfg. Co. Ltd., Yujin Steel Industry Co., Ahshin Pipe & 
Tube, Han Gyu Rae and Kukje, we have applied the margin rate of 30.66 
percent, the highest estimated dumping margin set forth in the notice 
of initiation. See Initiation Notice, 72 FR at 40278.

Date of Sale

    Section 351.401(i) of the Department's regulations states the 
Department normally will use the date of invoice, as recorded in the 
producer's or exporter's records kept in the ordinary course of 
business, as the date of sale. The regulations further provide that the 
Department may use a date other than the date of the invoice if the 
Secretary is satisfied that a different date better reflects the date 
on which the material terms of sale are established. See 19 CFR 
351.401(I). The Department has a long-standing practice of finding 
that, where shipment date precedes invoice date, shipment date better 
reflects the date on which the material terms of sale are established. 
See Notice of Final Determination of Sales at Less Than Fair Value and 
Negative Final Determination of Critical Circumstances: Certain Frozen 
and Canned Warmwater Shrimp from Thailand, 69 FR 76918 (December 23, 
2004), and accompanying Issues and Decision Memorandum at Comment 10; 
Notice of Final Determination of Sales at Less Than Fair Value: 
Structural Steel Beams from Germany, 67 FR 35497 (May 20, 2002), and 
accompanying Issues and Decision Memorandum at Comment 2; Notice of 
Final Determination of Sales at Less Than Fair Value: Certain Hot-
Rolled Flat-Rolled Carbon Quality Steel Products From Brazil, 64 FR 
38756, 38767 (July 19, 1999). Nexteel maintains the quantity is fixed 
on the date of shipment from its factory but that the price is only 
finalized when Nexteel issues the commercial and tax invoices. The 
issuance of commercial and tax invoices is frequently after shipment, 
but was not before shipment for any POI sales in both the home and U.S. 
markets. Therefore, Nexteel has reported the date of shipment from its 
factory as the date of sale under the field SALEDATH. See Nexteel's 
Section B response dated October 29, 2007, at pages B-14 to B-15. 
However, since the material terms of sale are not finalized until 
issuance of the commercial invoice, we have preliminarily determined to 
use date of invoice as the date of sale in both the home and U.S. 
markets. See Nexteel's supplemental Section B response dated December 
26, 2007, at pages 17 to 18.

[[Page 5799]]

Fair Value Comparisons

    To determine whether sales of subject merchandise from Korea were 
made in the United States at less than NV, we compared the export price 
(EP) to the NV, as described in the U.S. Price and Normal Value 
sections below. In accordance with section 777A(d)(1) of the Tariff 
Act, we calculated the weighted-average prices for NV and compared 
these to the weighted-average of EP.

U.S. Price

    For the price to the United States, we used EP in accordance with 
section 772(a) of the Tariff Act. Pursuant to section 772(a) of the 
Tariff Act, we used the EP methodology when the merchandise was sold by 
the producer or exporter outside the United States directly to the 
first unaffiliated purchaser in the United States prior to importation 
and when constructed export price (CEP) was not otherwise warranted 
based on the facts on the record. Nexteel has no affiliate in the 
United States and reports all its sales as EP sales. See Nexteel's 
Section C response at page C-9. Nothing on the record indicates that 
Nexteel's U.S. market sales are CEP sales, so we did not use the CEP 
methodology. We based EP on the packed prices charged to the 
unaffiliated Korean trading companies (as Nexteel knew the merchandise 
it was selling to that trading company was destined for the United 
States). See Nexteel's Section A questionnaire response dated October 
9, 2007, at page A-11; see also Wonderful Chemical Industrial, Ltd., et 
al. v. United States, 259 F. Supp. 2d 1273, 1279 (Ct. Intl. Trade 
2003). There were no reported billing adjustments or duty drawback 
claims.
    In accordance with section 772(c)(2) of the Tariff Act, we make 
deductions, where appropriate, for movement expenses including inland 
freight and brokerage expenses from plant to delivery. Due to the 
nature of Nexteel's U.S. sales (all were made to unaffiliated Korean 
trading companies who took possession at the Korean port), however, 
Nexteel had no expenses from plant to delivery other than 
transportation.

Normal Value

A. Home Market Viability and Comparison Market Selection

    To determine whether there was a sufficient volume of sales in the 
home market to serve as a viable basis for calculating NV, we compared 
Nexteel's volume of home market sales of the foreign like product to 
the volume of its U.S. sales of the subject merchandise. Pursuant to 
section 773(a)(1)(B)(ii)(II) of the Tariff Act, because Nexteel had an 
aggregate volume of home market sales of the foreign like product that 
was greater than five percent of its aggregate volume of U.S. sales of 
the subject merchandise, we determined that the home market was viable.

B. Arm's-Length Test

    Nexteel reported sales of the foreign like product to affiliated 
customers. The Department calculates NV based on a sale to an 
affiliated party only if it is satisfied that the price to the 
affiliated party is comparable to the price at which sales are made to 
parties not affiliated with the producer or exporter, i.e., the sales 
were at ``arm's length.'' See 19 CFR 351.403(c). To test whether these 
sales were made at arm's length, we compared the prices of sales to 
affiliated and unaffiliated customers net of all movement charges, 
direct selling expenses, discounts and packing. Id. In accordance with 
the Department's current practice, if the prices charged to an 
affiliated party were, on average, between 98 and 102 percent of the 
prices charged to unaffiliated parties for merchandise identical or 
most similar to that sold to the affiliated party, we considered the 
sales to be at arm's-length prices and included such sales in the 
calculation of NV. Conversely, where sales to the affiliated party did 
not pass the arm's-length test, all sales to that affiliated party 
would be excluded from the NV calculation. See 19 CFR 351.403(c) see 
also Antidumping Proceedings: Affiliated Party Sales in the Ordinary 
Course of Trade, 67 FR 69186 (November 15, 2002), and memorandum from 
Mark Flessner, Case Analyst, to the file entitled, ``Preliminary 
Determination of Sales at Less Than Fair Value of Light-Walled 
Rectangular Pipe and Tube from the Republic of Korea,'' dated January 
23, 2008 (Analysis Memorandum). No such sales were excluded for 
Nexteel.

C. Cost of Production Analysis

    Based on our analysis of the Petitioners' allegation, we found that 
there were reasonable grounds to believe or suspect that Nexteel's 
sales of light-walled rectangular pipe and tube in the home market were 
made at prices below their COP. Accordingly, pursuant to section 773(b) 
of the Tariff Act, we initiated a sales-below-cost investigation to 
determine whether Nexteel had sales that were made at prices below 
their respective COPs. See Cost Allegation Memorandum.
1. Calculation of Cost of Production
    In accordance with section 773(b)(3) of the Tariff Act, we 
calculated Nexteel's COP based on the sum of its costs of materials and 
conversion for the foreign like product, plus amounts for general and 
administrative (G&A) expenses and interest expenses (see the Test of 
Comparison Market Sales Prices section below for the treatment of home 
market selling expenses).
    The Department relied upon Nexteel's COP and CV information from 
the company's submission dated January 10, 2008. To determine COP, the 
reported cost of manufacturing data (TOTCOM) were adjusted by 
incorporating G&A expenses and financial expenses based on Nexteel's 
financial statements, and included in Nexteel's section D response at 
Exhibits D-9 and D-10, respectively.
2. Test of Comparison Market Sales Prices
    On a product-specific basis, we compared the adjusted weighted-
average COP to the home market sales prices of the foreign like 
product, as required under section 773(b) of the Tariff Act, in order 
to determine whether the sale prices were below the COP. The prices 
were exclusive of any applicable movement charges, direct and indirect 
selling expenses, and packing expenses.
3. Results of the COP Test
    In determining whether to disregard home market sales made at 
prices below the COP, we examined, in accordance with sections 
773(b)(1)(A) and (B) of the Tariff Act, whether, within an extended 
period of time, such sales were made in substantial quantities, and 
whether such sales were made at prices which permitted the recovery of 
all costs within a reasonable period of time. Pursuant to section 
773(b)(2)(c) of the Tariff Act, where less than 20 percent of the 
respondent's home market sales of a given model were at prices below 
the COP, we did not disregard any below-cost sales of that model 
because we determined that the below-cost sales were not made within an 
extended period of time in ``substantial quantities.'' Where 20 percent 
or more of the respondent's home market sales of a given model were at 
prices less than COP, we disregarded the below-cost sales because: (1) 
They were made within an extended period of time in ``substantial 
quantities,'' in accordance with sections 773(b)(2)(B) and (C) of the 
Tariff Act, and (2) based on our comparison of prices to the weighted-
average COPs for the POR, they were at

[[Page 5800]]

prices which would not permit the recovery of all costs within a 
reasonable period of time, in accordance with section 773(b)(2)(D) of 
the Tariff Act.
    Our cost test indicated that for certain Nexteel models, 20 percent 
or more of the home market sales volume (by weight) were sold at prices 
below COP within an extended period of time and were at prices which 
would not permit the recovery of all costs within a reasonable period 
of time. Thus, in accordance with section 773(b)(1) of the Tariff Act, 
we excluded these below-cost sales from our analysis and used the 
remaining above-cost sales in the calculation of NV.

D. Calculation of Normal Value Based on Comparison Market Prices

    We based home market prices on packed prices to unaffiliated 
purchasers in Korea. We adjusted the starting price for inland freight, 
warehouse expense, and warehouse revenue, where appropriate, pursuant 
to section 773(a)(6)(B)(ii) of the Tariff Act. In addition, for 
comparisons made to EP sales, we made adjustments for differences in 
circumstances of sale (COS) pursuant to section 773(a)(6)(C)(iii) of 
the Tariff Act. We made COS adjustments by deducting direct selling 
expenses incurred for home market sales (credit expense) and adding 
U.S. direct selling expenses (credit and other direct selling 
expenses), where appropriate. See 19 CFR 351.410(c).
    When comparing U.S. sales with comparison market sales of similar, 
but not identical, merchandise, we also made adjustments for physical 
differences in the merchandise in accordance with section 
773(a)(6)(C)(ii) of the Tariff Act and 19 CFR 351.411. We based this 
adjustment on the difference in the variable cost of manufacturing for 
the foreign like product and subject merchandise. See 19 CFR 
351.411(b).

E. Level of Trade/Constructed Export Price Offset

    In accordance with section 773(a)(1)(B)(i) of the Tariff Act, to 
the extent practicable, we determine NV based on sales in the 
comparison market at the same level of trade (LOT) as the EP or CEP 
transaction. In identifying LOTs for EP and comparison market sales 
(i.e., NV based on home market), we consider the starting prices before 
any adjustments. For CEP sales, we consider only the selling activities 
reflected in the price after the deduction of expenses and profit under 
section 772(d) of the Tariff Act. See Micron Technology, Inc. v. United 
States, 243 F.3d 1301, 1314 (Fed. Cir. 2001).
    To determine whether NV sales are at a different LOT than EP or CEP 
transactions, we examine stages in the marketing process and selling 
functions along the chain of distribution between the producer and the 
unaffiliated customer. If the comparison market sales are at a 
different LOT and the difference affects price comparability, as 
manifested in a pattern of consistent price differences between the 
sales on which NV is based and comparison market sales at the LOT of 
the export transaction, we make an LOT adjustment under section 
773(a)(7)(A) of the Tariff Act. For CEP sales, if the NV level is more 
remote from the factory than the CEP level and there is no basis for 
determining whether the difference in the levels between NV and CEP 
affects price comparability, we adjust NV under section 773(a)(7)(B) of 
the Tariff Act (the CEP offset provision). Nexteel reported sales 
through one LOT corresponding to two channels of distribution in the 
home market. In the U.S. market, Nexteel reported one LOT corresponding 
to one channel of distribution for the EP sales made through 
unaffiliated Korean trading companies (as stated above, there were no 
CEP sales during the POI). In our analysis, we determined that there is 
one LOT in the home market and one LOT in the U.S. market. Nexteel did 
not claim that there were differing LOTs in the home and U.S. markets. 
Our analysis of the various selling functions indicates no differing 
LOTs in the home and U.S. markets. See Nexteel's section A 
questionnaire response dated October 9, 2007, at Exhibit A-5; Nexteel's 
Selling Function Chart shows the same level of activity in each market 
for every function listed in this exhibit. We have therefore 
preliminarily determined that sales to the U.S. and home markets were 
made at the same LOT, and as a result, no LOT adjustment was warranted.

Currency Conversion

    We made currency conversions into U.S. dollars in accordance with 
section 773A(a) of the Tariff Act based on exchange rates in effect on 
the dates of the U.S. sales, as certified by the Federal Reserve Bank.

All-Others Rate

    Section 735(c)(5)(B) of the Tariff Act states: ``If the estimated 
weighted average dumping margins established for all exporters and 
producers individually investigated are zero or de minimis margins, or 
are determined entirely under section 776, the administering authority 
may use any reasonable method to establish the estimated all-others 
rate for exporters and producers not individually investigated, 
including averaging the estimated weighted average dumping margins 
determined for the exporters and producers individually investigated.'' 
Nexteel is the only respondent in this investigation for which the 
Department has calculated a company-specific rate. This rate, however, 
is de minimis. Nine remaining companies all received a margin based 
entirely on AFA under section 776 of the Tariff Act. One company, SeAH, 
will receive the all-others rate (i.e., its rate was not calculated, as 
stated above). Therefore, for purposes of determining the all-others 
rate, because there are no other rates than de minimis or those based 
on AFA, we have reasonably determined to take a simple average of the 
AFA rate (30.66 percent) and the de minimis rate calculated for Nexteel 
(1.30 percent); therefore, 15.98 percent is the average to be assigned 
for the all-others rate, as referenced in the Suspension of Liquidation 
section, below.

Verification

    As provided in section 782(i) of the Tariff Act, we intend to 
verify information upon which we will rely in making our final 
determination.

Preliminary Determination

    We preliminarily determine the following weighted-average dumping 
margins exist for the period April 1, 2006 through March 31, 2007:

------------------------------------------------------------------------
                                                             Weighted-
                                                              average
                    Producer/exporter                         margin
                                                           (percentage)
------------------------------------------------------------------------
Nexteel Co., Ltd........................................          * 1.30
Dong-A Steel Pipe Co. Ltd...............................           30.66
HiSteel Co. Ltd.........................................           30.66
Jinbang Steel Co. Ltd...................................           30.66
Joong Won...............................................           30.66
Miju Steel Mfg. Co., Ltd................................           30.66
Yujin Steel Industry Co.................................           30.66
Ahshin Pipe & Tube......................................           30.66
Han Gyu Rae Steel Co., Ltd..............................           30.66
Kukje Steel Co., Ltd....................................           30.66
SeAH Steel Corporation, Ltd.............................           15.98
All others..............................................          15.98
------------------------------------------------------------------------
* (de minimis).

Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, we are directing 
U.S. Customs and Border Protection (CBP) to suspend liquidation of all 
entries of LWR pipe and tube from the Republic of Korea, with the 
exception of those produced by Nexteel Co., Ltd. and exported by 
Nexteel Co., Ltd. or either of the two exporters named in its 
questionnaire responses, that are

[[Page 5801]]

entered, or withdrawn from warehouse, for consumption on or after the 
date of publication of this notice in the Federal Register. We will 
instruct CBP to require a cash deposit or the posting of a bond equal 
to the weighted-average dumping margin, as indicated in the chart 
above, as follows: (1) The rate for the firms listed above (except for 
Nexteel, see below) will be the rate we have determined in this 
preliminary determination; (2) if the exporter is not a firm identified 
in this investigation, but the producer is, the rate will be the rate 
established for the producer of the subject merchandise; (3) the rate 
for all other producers or exporters will be 15.98 percent. These 
suspension-of-liquidation instructions will remain in effect until 
further notice.
    In accordance with 19 CFR 351.204(e)(2), because the weighted-
average margin for Nexteel is de minimis, we will instruct CBP not to 
suspend liquidation of merchandise produced by Nexteel Co., Ltd. and 
exported by Nexteel Co., Ltd. or either of the two exporters named in 
its questionnaire responses.

Commission Notification

    In accordance with section 733(f) of the Tariff Act, we have 
notified the Commission of the Department's preliminary affirmative 
determination. If the Department's final determination is affirmative, 
the Commission will determine before the later of 120 days after the 
date of this preliminary determination or 45 days after our final 
determination whether imports of light-walled rectangular pipe and tube 
from Korea are materially injuring, or threaten material injury to, the 
U.S. industry. Because we have postponed the deadline for our final 
determination to 135 days from the date of the publication of this 
preliminary determination, the Commission will make its final 
determination within 45 days of our final determination.

Disclosure

    In accordance with 19 CFR 351.224(b), the Department will disclose 
to interested parties the calculations performed in this preliminary 
determination within five days of the date of the public announcement.

Public Comment

    Interested parties are invited to comment on the preliminary 
determination. Interested parties may submit case briefs to the 
Department no later than seven days after the date of the issuance of 
the final verification report in this proceeding. See 19 CFR 
351.309(c)(1)(i). Rebuttal briefs, limited to the issues raised in the 
case briefs, must be filed within five days from the deadline date for 
the submission of case briefs. See 19 CFR 351.309(d)(1) and (2). A list 
of authorities used, a table of contents, and an executive summary of 
issues should accompany any briefs submitted to the Department. 
Executive summaries should be limited to five pages total, including 
footnotes. Further, we request that parties submitting briefs and 
rebuttal briefs provide the Department with a copy of the public 
version of such briefs on diskette. In accordance with section 774 of 
the Tariff Act, the Department will hold a public hearing, if 
requested, to afford interested parties an opportunity to comment on 
arguments raised in case or rebuttal briefs, provided that such a 
hearing is requested by an interested party. If a request for a hearing 
is made in this investigation, the hearing will tentatively be held two 
days after the rebuttal brief deadline date at the U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230, at a time and place to be determined. However, parties should 
confirm by telephone, the date, time, and location of the hearing 48 
hours before the scheduled date.
    Interested parties who wish to request a hearing, or to participate 
in a hearing if one is requested, must submit a written request to the 
Assistant Secretary for Import Administration, U.S. Department of 
Commerce, Room 1870, within 30 days of the publication of this notice. 
Requests should contain: (1) The party's name, address, and telephone 
number; (2) the number of participants; and (3) a list of the issues to 
be discussed. See 19 CFR 351.310(c). At the hearing, oral presentations 
will be limited to issues raised in the briefs.

Postponement of Final Determination and Extension of Provisional 
Measures

    Pursuant to section 735(a)(2) of the Tariff Act, on January 3, 
2008, Nexteel, which accounted for a significant proportion of exports 
of light-walled rectangular pipe and tube, requested that in the event 
of an affirmative preliminary determination in this investigation, the 
Department postpone its final determination by 60 days. At the same 
time, Nexteel requested that the Department extend by 60 days the 
application of the provisional measures. See Section 735(a)(2) of the 
Tariff Act and 19 CFR 351.210(e)(2). In accordance with section 733(d) 
of the Tariff Act and 19 CFR 351.210(b)(2)(ii), because (1) our 
preliminary determination is affirmative, (2) the requesting exporter 
accounts for a significant proportion of exports of the subject 
merchandise, and (3) no compelling reasons for denial exist, we are 
granting Nexteel's request and are postponing the final determination 
until no later than 135 days after the publication of this notice in 
the Federal Register. Suspension of liquidation will be extended 
accordingly.
    This determination is issued and published pursuant to sections 
733(f) and 777(i)(1) of the Tariff Act.

    Dated: January 23, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. 08-415 Filed 1-30-08; 8:45 am]
BILLING CODE 3510-DS-P