[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Notices]
[Pages 39055-39062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18722]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-583-831]
Stainless Steel Sheet and Strip in Coils From Taiwan: Preliminary
Results and Rescission in Part of Antidumping Duty Administrative
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting an
administrative review of the antidumping duty order on stainless steel
sheet and strip in coils (SSSSC) from Taiwan with respect to three
companies. Only one respondent, Chia Far Industrial Factory Co., Ltd.
(Chia Far), is participating in this review; the remaining two
companies reported that they had no shipments of subject merchandise
during the period of review (POR). The POR is July 1, 2007, through
June 30, 2008.
We preliminarily determine that Chia Far made sales below normal
value (NV). Moreover, we are preliminarily rescinding the review with
respect to the companies that submitted no-shipment responses.
If the preliminary results are adopted in our final results of this
administrative review, we will instruct U.S. Customs and Border
Protection (CBP) to assess antidumping duties on all appropriate
entries. Interested parties are invited to comment on the preliminary
results.
DATES: Effective Date: August 5, 2009.
FOR FURTHER INFORMATION CONTACT: Henry Almond, AD/CVD Operations,
Office 2, Import Administration--Room 1870, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0049.
SUPPLEMENTARY INFORMATION:
Background
On July 27, 1999, the Department published in the Federal Register
the antidumping duty order on SSSSC from Taiwan. See Notice of
Antidumping Duty Order; Stainless Steel Sheet and Strip in Coils From
United Kingdom, Taiwan, and South Korea, 64 FR 40555 (July 27, 1999)
(SSSSC Order). On July 11, 2008, the Department published in the
Federal Register a notice of opportunity to request administrative
review of this order. See Antidumping or Countervailing Duty Order,
Finding, or Suspended Investigation; Opportunity to Request
Administrative Review, 73 FR 39948 (July 11, 2008).
On July 31, 2008, the petitioners \1\ submitted a timely request
for the Department to conduct an administrative review of the sales of
SSSSC made during the POR by the following 20 companies: Chain Chon
Industrial Co., Ltd.; Chia Far; Chien Shing Stainess Co.; China Steel
Corporation; Dah Shi Metal Industrial Co., Ltd.; Emerdex Group; Emerdex
Stainless Flat-Rolled Products, Inc.; Emerdex Stainless Steel, Inc.;
KNS Enterprise Co., Ltd.; Lih Chan Steel Co., Ltd.; Maytun
International Corp.; PFP Taiwan Co., Ltd.; Shih Yuan Stainess Steel
Enterprise Co., Ltd.; Ta Chen Stainless Pipe Co., Ltd. (Ta Chen); Tang
Eng Iron Works; Waterson Corp.; Well Harvest Metal Co., Ltd.; Yieh
Loong Enterprise Co., Ltd. (aka Chung Hung Steel Co., Ltd.); Yieh Mau
Corp.; and Yieh United Steel Corporation (YUSCO), pursuant to section
751(a) of the Tariff Act of 1930, as amended (the Act), and in
accordance with 19 CFR 351.213(b)(1).
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\1\ The petitioners are Allegheny Ludlum Corporation, AK Steel
Corporation, North American Stainless, United Auto Workers Local
3303, United Steelworkers of America, AFL-CIO/CLC, and Zanesville
Armco Independent Organization.
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In August 2008, the Department published a notice of initiation of
administrative review covering each of these 20 companies. See
Initiation of Antidumping and Countervailing Duty Administrative
Reviews, 73 FR 50308, 50309 (Aug. 26, 2008) (Initiation Notice).
In our initiation notice we indicated that we would select
mandatory respondents for review based upon CBP entry data. See
Initiation Notice, 73 FR at 50308. In September 2008, we released
relevant CBP data to interested parties, and we received comments on
the issue of respondent selection from the petitioners. Also in that
month we received a statement from Ta Chen indicating that it had no
shipments of subject merchandise to the United States during the POR.
Also in September 2008, the petitioners withdrew their request for
administrative review with respect to the following 17 companies: Chain
Chon Industrial Co., Ltd.; Chien Shing Stainess Co.; China Steel
Corporation; Dah Shi Metal Industrial Co., Ltd.; Emerdex Group; Emerdex
Stainless Flat-Rolled Products, Inc.; Emerdex Stainless Steel, Inc.;
KNS Enterprise Co., Ltd.; Lih Chan Steel Co., Ltd.; Maytun
International Corp.; PFP Taiwan Co., Ltd.; Shih Yuan Stainess Steel
Enterprise Co., Ltd.; Tang Eng Iron Works; Waterson Corp.; Well Harvest
Metal Co., Ltd.; Yieh Loong Enterprise Co., Ltd. (aka Chung Hung Steel
Co., Ltd.); and Yieh Mau Corp.
In October 2008, the Department issued the antidumping duty
questionnaire to two remaining respondents, Chia Far and YUSCO, and we
issued a letter to Ta Chen requesting additional information regarding
its no-shipment statement. Ta Chen responded to our request in the same
month by providing the requested information. Also in October 2008,
YUSCO provided a statement indicating that it had no shipments of
subject merchandise to the United States during the POR. For further
discussion, see the ``Partial Rescission of Review'' section of this
notice.
Subsequent to Ta Chen's October response, the petitioners alleged
that Ta Chen was engaged in middleman dumping of merchandise produced
by Tung Mung Development Co. (Tung Mung), a Taiwanese producer of SSSSC
which is excluded from the order. See Notice of Correction to the
Amended Final Determination in Accordance With Court Decision in the
Antidumping Duty Investigation of Stainless Steel Sheet and Strip in
Coils From Taiwan, 70 FR 17658 (April 7, 2005). In November 2008, Ta
Chen denied the petitioners' allegations, stating that Ta Chen
International (TCI), a U.S. affiliate of Ta Chen, purchased and
imported the SSSSC directly from Tung Mung and consequently that Ta
Chen did not act as a middleman in these transactions. For further
discussion, see the ``Middleman Dumping'' section of this notice.
During the period October through December 2008, we received Chia
Far's responses to sections A through D of the questionnaire.
In December 2008, we issued a supplemental questionnaire covering
section D of the questionnaire (i.e., the section covering cost of
production (COP)). Chia Far responded to this supplemental
questionnaire in January 2009.
In March 2009, we published a notice extending the time limit for
completion of the preliminary results. See Stainless Steel Sheet and
Strip in Coils from Japan and Taiwan: Notice of Extension of Time Limit
for Preliminary Results of
[[Page 39056]]
the 2007-2008 Administrative Reviews, 74 FR 10885 (Mar. 13, 2009).
In April 2009, we issued supplemental questionnaires covering
sections A through C and a second supplemental questionnaire covering
section D to Chia Far. We received Chia Far's responses to the
supplemental questionnaires in April and May 2009.
In June and July 2009, the petitioners submitted additional
comments requesting that the Department treat Ta Chen as a middleman
for sales between Tung Mung and TCI.
Period of Review
The POR is July 1, 2007, through June 30, 2008.
Scope of the Order
The products covered by the order are certain stainless steel sheet
and strip in coils. Stainless steel is an alloy steel containing, by
weight, 1.2 percent or less of carbon and 10.5 percent or more of
chromium, with or without other elements. The subject sheet and strip
is a flat-rolled product in coils that is greater than 9.5 mm in width
and less than 4.75 mm in thickness, and that is annealed or otherwise
heat treated and pickled or otherwise descaled. The subject sheet and
strip may also be further processed (e.g., cold-rolled, polished,
aluminized, coated, etc.) provided that it maintains the specific
dimensions of sheet and strip following such processing.
The merchandise subject to the order is classified in the
Harmonized Tariff Schedule of the United States (HTSUS) at subheadings:
7219.13.00.31, 7219.13.00.51, 7219.13.00.71, 7219.13.00.81,
7219.14.00.30, 7219.14.00.65, 7219.14.00.90, 7219.32.00.05,
7219.32.00.20, 7219.32.00.25, 7219.32.00.35, 7219.32.00.36,
7219.32.00.38, 7219.32.00.42, 7219.32.00.44, 7219.33.00.05,
7219.33.00.20, 7219.33.00.25, 7219.33.00.35, 7219.33.00.36,
7219.33.00.38, 7219.33.00.42, 7219.33.00.44, 7219.34.00.05,
7219.34.00.20, 7219.34.00.25, 7219.34.00.30, 7219.34.00.35,
7219.35.00.05, 7219.35.00.15, 7219.35.00.30, 7219.35.00.35,
7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60,
7219.90.00.80, 7220.12.10.00, 7220.12.50.00, 7220.20.10.10,
7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05,
7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80,
7220.20.70.05, 7220.20.70.10, 7220.20.70.15, 7220.20.70.60,
7220.20.70.80, 7220.20.80.00, 7220.20.90.30, 7220.20.90.60,
7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80.
Although the HTSUS subheadings are provided for convenience and customs
purposes, the Department's written description of the merchandise under
the order is dispositive.
Excluded from the scope of the order are the following: (1) Sheet
and strip that is not annealed or otherwise heat treated and pickled or
otherwise descaled, (2) sheet and strip that is cut to length, (3)
plate (i.e., flat-rolled stainless steel products of a thickness of
4.75 mm or more), (4) flat wire (i.e., cold-rolled sections, with a
prepared edge, rectangular in shape, of a width of not more than 9.5
mm), and (5) razor blade steel. Razor blade steel is a flat-rolled
product of stainless steel, not further worked than cold-rolled (cold-
reduced), in coils, of a width of not more than 23 mm and a thickness
of 0.266 mm or less, containing, by weight, 12.5 to 14.5 percent
chromium, and certified at the time of entry to be used in the
manufacture of razor blades. See Chapter 72 of the HTSUS, ``Additional
U.S. Note'' 1(d).
Also excluded from the scope of the order are certain specialty
stainless steel products described below. Flapper valve steel is
defined as stainless steel strip in coils containing, by weight,
between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent
molybdenum, and between 0.20 and 0.80 percent manganese. This steel
also contains, by weight, phosphorus of 0.025 percent or less, silicon
of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less.
The product is manufactured by means of vacuum arc remelting, with
inclusion controls for sulphide of no more than 0.04 percent and for
oxide of no more than 0.05 percent. Flapper valve steel has a tensile
strength of between 210 and 300 ksi, yield strength of between 170 and
270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and
590. Flapper valve steel is most commonly used to produce specialty
flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a
specialty steel product used in the manufacture of suspension
assemblies for computer disk drives. Suspension foil is described as
302/304 grade or 202 grade stainless steel of a thickness between 14
and 127 microns, with a thickness tolerance of plus-or-minus 2.01
microns, and surface glossiness of 200 to 700 percent Gs. Suspension
foil must be supplied in coil widths of not more than 407 mm, and with
a mass of 225 kg or less. Roll marks may only be visible on one side,
with no scratches of measurable depth. The material must exhibit
residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm
over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is
also excluded from the scope of the order. This stainless steel strip
in coils is a specialty foil with a thickness of between 20 and 110
microns used to produce a metallic substrate with a honeycomb structure
for use in automotive catalytic converters. The steel contains, by
weight, carbon of no more than 0.030 percent, silicon of no more than
1.0 percent, manganese of no more than 1.0 percent, chromium of between
19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of
no more than 0.045 percent, sulfur of no more than 0.03 percent,
lanthanum of less than 0.002 or greater than 0.05 percent, and total
rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also
excluded from the scope of the order. This ductile stainless steel
strip contains, by weight, 26 to 30 percent chromium, and 7 to 10
percent cobalt, with the remainder of iron, in widths 228.6 mm or less,
and a thickness between 0.127 and 1.270 mm. It exhibits magnetic
remanence between 9,000 and 12,000 gauss, and a coercivity of between
50 and 300 oersteds. This product is most commonly used in electronic
sensors and is currently available under proprietary trade names such
as Arnokrome III.\2\
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\2\ Arnokrome III is a trademark of the Arnold Engineering
Company.
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Certain electrical resistance alloy steel is also excluded from the
scope of the order. This product is defined as a non-magnetic stainless
steel manufactured to American Society of Testing and Materials
specification B344 and containing, by weight, 36 percent nickel, 18
percent chromium, and 46 percent iron, and is most notable for its
resistance to high temperature corrosion. It has a melting point of
1390 degrees Celsius and displays a creep rupture limit of 4 kilograms
per square millimeter at 1000 degrees Celsius. This steel is most
commonly used in the production of heating ribbons for circuit breakers
and industrial furnaces, and in rheostats for railway locomotives. The
product is currently available under proprietary trade names such as
Gilphy 36.\3\
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\3\ Gilphy 36 is a trademark of Imphy, S.A.
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Certain martensitic precipitation-hardenable stainless steel is
also excluded from the scope of the order. This high-strength, ductile
stainless
[[Page 39057]]
steel product is designated under the Unified Numbering System as
S45500-grade steel, and contains, by weight, 11 to 13 percent chromium,
and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum
each comprise, by weight, 0.05 percent or less, with phosphorus and
sulfur each comprising, by weight, 0.03 percent or less. This steel has
copper, niobium, and titanium added to achieve aging, and will exhibit
yield strengths as high as 1700 Mpa and ultimate tensile strengths as
high as 1750 Mpa after aging, with elongation percentages of 3 percent
or less in 50 mm. It is generally provided in thicknesses between 0.635
and 0.787 mm, and in widths of 25.4 mm. This product is most commonly
used in the manufacture of television tubes and is currently available
under proprietary trade names such as Durphynox 17.\4\
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\4\ Durphynox 17 is a trademark of Imphy, S.A.
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Finally, three specialty stainless steels typically used in certain
industrial blades and surgical and medical instruments are also
excluded from the scope of the order. These include stainless steel
strip in coils used in the production of textile cutting tools (e.g.,
carpet knives).\5\ This steel is similar to AISI grade 420 but
containing, by weight, 0.5 to 0.7 percent of molybdenum. The steel also
contains, by weight, carbon of between 1.0 and 1.1 percent, sulfur of
0.020 percent or less, and includes between 0.20 and 0.30 percent
copper and between 0.20 and 0.50 percent cobalt. This steel is sold
under proprietary names such as GIN4 Mo. The second excluded stainless
steel strip in coils is similar to AISI 420-J2 and contains, by weight,
carbon of between 0.62 and 0.70 percent, silicon of between 0.20 and
0.50 percent, manganese of between 0.45 and 0.80 percent, phosphorus of
no more than 0.025 percent and sulfur of no more than 0.020 percent.
This steel has a carbide density on average of 100 carbide particles
per 100 square microns. An example of this product is GIN5 steel. The
third specialty steel has a chemical composition similar to AISI 420 F,
with carbon of between 0.37 and 0.43 percent, molybdenum of between
1.15 and 1.35 percent, but lower manganese of between 0.20 and 0.80
percent, phosphorus of no more than 0.025 percent, silicon of between
0.20 and 0.50 percent, and sulfur of no more than 0.020 percent. This
product is supplied with a hardness of more than Hv 500 guaranteed
after customer processing, and is supplied as, for example, GIN6.\6\
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\5\ This list of uses is illustrated and provided for
descriptive purposes only.
\6\ GIN4 Mo, GIN5 and GIN6 are the proprietary grades of Hitachi
Metals America, Ltd.
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Partial Rescission of Review
On September 25, 2008, the petitioners withdrew their request for
administrative review with respect to the following 17 companies within
the time limits set forth in 19 CFR 351.213(d)(1): (1) Chain Chon
Industrial Co., Ltd.; (2) Chien Shing Stainless Co.; (3) China Steel
Corporation; (4) Dah Shi Metal Industrial Co., Ltd.; (5) Emerdex Group;
(6) Emerdex Stainless Flat-Rolled Products, Inc.; (7) Emerdex Stainless
Steel, Inc.; (8) KNS Enterprise Co., Ltd.; (9) Lih Chan Steel Co.,
Ltd.; (10) Maytun International Corp.; (11) PFP Taiwan Co., Ltd.; (12)
Shih Yuan Stainess Steel Enterprise Co., Ltd.; (13) Tang Eng Iron
Works; (14) Waterson Corp.; (15) Well Harvest Metal Co., Ltd.; (16)
Yieh Loong Enterprise Co., Ltd. (aka Chung Hung Steel Co., Ltd.); and
(17) Yieh Mau Corp. Section 351.213(d)(1) of the Department's
regulations requires that the Secretary rescind an administrative
review if a party requesting a review withdraws the request within 90
days of the date of publication of the notice of initiation. Therefore,
in accordance with 19 CFR 351.213(d)(1), because the request for
administrative review with respect to the companies listed above was
timely withdrawn, we are rescinding this review with regard to those
companies.
Further, as noted in the ``Background'' section above, another
respondent, YUSCO, certified to the Department that it had no
shipments/entries of subject merchandise into the United States during
the POR. The Department subsequently confirmed with CBP the no-shipment
claim made by YUSCO. See the November 13, 2008, Memorandum to the File
from Henry Almond, Analyst, entitled, ``2007-2008 Administrative Review
of Stainless Steel Sheet and Strips in Coils from Taiwan: Entry
Information from U.S. Customs and Border Protection (CBP).'' Because
the evidence on the record indicates that YUSCO did not export subject
merchandise to the United States during the POR, we preliminarily
determine that it is appropriate to rescind the review for YUSCO, in
accordance with 19 CFR 351.213(d)(3), and is consistent with the
Department's practice. See, e.g., Stainless Steel Sheet and Strip in
Coils from Taiwan: Preliminary Results and Preliminary Rescission in
Part of Antidumping Duty Administrative Review, 73 FR 45393, 45395
(Aug. 5, 2008) (2006-2007 Preliminary Results), unchanged in Stainless
Steel Sheet and Strip in Coils From Taiwan: Final Results and
Rescission in Part of Antidumping Duty Administrative Review, 73 FR
74704,74706 (Dec. 9, 2008) (2006-2007 Final Results); and Chia Far
Indus. Factory Co., Ltd. v. United States, 343 F. Supp 2d 1344, 1374
(2004). Finally, as noted above, Ta Chen also certified to the
Department that it had no shipments/entries of subject merchandise into
the United States during the POR. As with YUSCO, we confirmed with CBP
that Ta Chen had no shipments/entries of subject merchandise during the
POR. See the September 9, 2008, Memorandum to the File from Henry
Almond, Analyst, entitled ``Release of Additional Customs Entry Data
from CBP.'' Because we preliminarily find that Ta Chen did not act as a
middleman via imports by its U.S. affiliate, TCI, we are also
preliminarily rescinding this review with respect to Ta Chen. For
further discussion of this issue, see the ``Middleman Dumping''
section, below.
Middleman Dumping
In response to Ta Chen's certification that it had no shipments of
subject merchandise during the POR, on September 18, 2008, the
petitioners alleged that Ta Chen was engaged in middleman dumping by
virtue of the fact that its U.S. affiliate, TCI, purchased and imported
SSSSC from a Taiwanese producer/exporter during the POR. Specifically,
the petitioners alleged that merchandise produced and exported by Tung
Mung, a company whose exports of SSSSC are excluded from the
antidumping duty order, and imported by TCI is subject to a middleman
dumping enquiry because: (1) The Department previously found that Ta
Chen acted as a middleman with respect to certain shipments from Tung
Mung to the United States; and, (2) Ta Chen acts as a de facto
middleman for Tung Mung sales to TCI by virtue of the fact that TCI is
a wholly-owned subsidiary of Ta Chen.
On October 1, 2008, we requested that Ta Chen provide additional
information about its role in the sales at issue, as well as explain
why it believed the transactions at issue were not properly subject to
a middleman dumping investigation. On October 7, 2008, Ta Chen
responded to this questionnaire stating that Ta Chen played no role in
the transactions. Specifically, Ta Chen stated that TCI negotiated
directly with Tung Mung for these transactions and paid Tung Mung
directly, and that Tung Mung acted as the exporter of record and TCI
acted as the importer of record
[[Page 39058]]
for the sales in question. Further, Ta Chen argued that the
Department's middleman dumping practice does not extend to direct sales
from a foreign producer to an unaffiliated U.S. customer. Ta Chen
further stated that in the less-than-fair-value (LTFV) investigation,
the Department did not apply its middleman dumping methodology to this
channel of direct sales from Tung Mung to TCI.
On October 24, 2008, June 5 and July 13, 2009, the petitioners
submitted additional comments with respect to this issue. Ta Chen
responded to the former comments on November 4, 2008, and did not
respond to the latter. After considering the petitioners' allegation
and their additional comments, as well as the information submitted by
Ta Chen, we preliminarily find that Ta Chen did not act as a middleman
because there is no evidence on the record demonstrating that Ta Chen
was involved in the export transactions at issue. See the October 7 and
November 4, 2008, Letters from Ta Chen regarding Middleman Dumping; and
the January 14, 2008, Memorandum to the File from Henry Almond,
Analyst, entitled, ``2007-2008 Administrative Review of Stainless Steel
Sheet and Strip in Coils from Taiwan: Entry Documents from U.S. Customs
and Border Protection.'' Rather, these transactions involved direct
sales from Tung Mung, a company which is excluded from the order, to an
unaffiliated purchaser in the United States, and thus these sales are
properly excluded from the antidumping duty order on SSSSC from Taiwan.
This finding is consistent with our determination in the LTFV
investigation that Tung Mung's direct sales to the United States were
not subject to a middleman dumping investigation. See Notice of Final
Determination of Sales at Less Than Fair Value: Stainless Steel Sheet
and Strip in Coils From Taiwan 64 FR 30592, 30621-30624 (June 8, 1999)
(where the Department stated ``although Tung Mung did have a small
number of direct sales to TCI, we are not considering them to be
subject to our middleman investigation.'') We find the facts in this
segment of the proceeding with respect to Tung Mung's direct sales to
TCI to be identical to those present in the LTFV investigation. Thus,
we find no basis to treat TCI as a middleman, solely by virtue of its
affiliation with Ta Chen. Accordingly, we preliminarily determine it is
appropriate to rescind the review for Ta Chen.
Affiliation
In the 2006-2007 administrative review, the most recently completed
segment of this proceeding, we found Chia Far and Lucky Medsup Inc.
(Lucky Medsup), one of Chia Far's U.S. reseller customers, to be
affiliated under section 771(33) of the Act, which states that, for
purposes of affiliation, ``a person shall be considered to control
another person if the person is legally or operationally in a position
to exercise restraint or direction over that person.'' The Department's
regulations further provide that ``{t{time} he Secretary will not find
that control exists on the basis of these factors unless the
relationship has the potential to impact decisions concerning the
production, pricing, or cost of the subject merchandise or foreign like
product.'' See 19 CFR 351.102(b)(3). This affiliation determination was
based upon: (1) Chia Far's degree of involvement in sales between Lucky
Medsup and its customers; (2) Chia Far knew the identity of Lucky
Medsup's customers, and the customers were aware Chia Far was the
supplier; (3) Lucky Medsup operated as a ``go-through'' that did not
maintain any inventory or further manufacture products; and, (4) with
the exception of one transaction involving non-subject merchandise, all
of the products sold by Lucky Medsup during the POR were subject
merchandise produced or exported by Chia Far. See 2006-2007 Preliminary
Results, 73 FR at 45395-45396, unchanged in 2006-2007 Final Results.
The affiliation determination in the 2006-2007 administrative
review is consistent with the Department's findings in prior
administrative reviews of the antidumping duty order on SSSSC from
Taiwan. See, e.g., Stainless Steel Sheet and Strip in Coils From
Taiwan: Final Results and Rescission in Part of Antidumping Duty
Administrative Review, 73 FR 6932 (Feb. 6, 2008), and accompanying
Issues and Decision Memorandum at Comment 3 (2005-2006 Final Results);
Stainless Steel Sheet and Strip From Taiwan; Final Results and Partial
Rescission of Antidumping Duty Administrative Review, 67 FR 6682 (Feb.
13, 2002), and accompanying Issues and Decision Memorandum at Comment
23 (upheld by the Court of International Trade (CIT) in Chia Far Indus.
Factory Co., Ltd. v. United States, et al., 343 F. Supp. 2d 1344, 1356-
57 (CIT 2004)). See also the July 29, 2009, Memorandum to the File from
Henry Almond, Analyst, entitled, ``Placing Information Regarding the
Principal-Agent Relationship between Lucky Medsup Inc. and Chia Far
Industrial Factory Co., Ltd. on the Record of the 2007-2008 Antidumping
Duty Administrative Review on Stainless Steel Sheet and Strip in Coils
from Taiwan.''
In the present review, Lucky Medsup continues to act as a ``go-
through'' without maintaining inventory, and Chia Far supplied all of
the subject merchandise sold by Lucky Medsup during the POR. Further,
Chia Far has submitted no evidence on the record to demonstrate that
Chia Far is less involved in the transactions between Lucky Medsup and
its customers as found in prior reviews. Therefore, we continue to find
for purposes of these preliminary results that Chia Far is affiliated
with Lucky Medsup because Chia Far is in a position to exercise
restraint or direction over Lucky Medsup and has the potential to have
an impact on Lucky Medsup's decisions regarding sales and pricing.
Identifying Home Market Sales
Section 773(a)(1)(B) of the Act defines NV as the price at which
the foreign like product is first sold (or, in the absence of a sale,
offered for sale) for consumption in the exporting country (home
market), in the usual commercial quantities and in the ordinary course
of trade and, to the extent practicable, at the same level of trade
(LOT) as the export price (EP) or constructed export price (CEP). In
implementing this provision, the Court of International Trade has found
that sales should be reported as home market sales if the producer
``knew or should have known that the merchandise {it sold{time} was
for home consumption based upon the particular facts and circumstances
surrounding the sales.'' See Tung Mung Dev. Co v. United States, 25 CIT
752, 783 (2001) (quoting INA Walzlager Schaeffler KG v. United States,
957 F. Supp. 251 (CIT 1997)). Where a respondent has no knowledge as to
the destination of subject merchandise, except that it is for export,
the Department will classify such sales as export sales and exclude
them from the home market sales database. See 2006-2007 Preliminary
Results, 73 FR at 45396, unchanged in 2006-2007 Final Results, and
Final Determinations of Sales at Less Than Fair Value: Certain Hot-
Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel
Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products,
and Certain Cut-to-Length Carbon Steel Plate From Korea, 58 FR 37176,
37182-37183 (July 9, 1993).
In its November 14, 2008, questionnaire response, Chia Far stated
that it shipped some of the SSSSC it
[[Page 39059]]
sold to home market customers during the POR to a container yard or it
placed the SSSSC in an ocean shipping container at the home market
customer's request. The Department has preliminarily determined that,
based on the fact that these sales were sent to a container yard or
placed in a container by Chia Far at the request of the home market
customer, Chia Far should have known that the SSSSC in question was not
for consumption in the home market. Therefore, consistent with this
determination, the Department has preliminarily excluded these sales
from Chia Far's home market sales database. This treatment is
consistent with our practice in prior administrative reviews of this
order. See, e.g., 2006-2007 Preliminary Results, 73 FR at 45396,
unchanged in 2006-2007 Final Results.
Comparisons to Normal Value
In order to determine whether Chia Far sold SSSSC to the United
States at prices less than NV, the Department compared the EP and CEP
of individual U.S. sales to the monthly weighted-average NV of sales of
the foreign like product made in the ordinary course of trade. See
section 777A(d)(2) of the Act; see also section 773(a)(1)(B)(i) of the
Act. Section 771(16) of the Act defines foreign like product as
merchandise that is identical or similar to subject merchandise and
produced by the same person and in the same country as the subject
merchandise. Thus, we considered all products covered by the scope of
the order that were produced by the same person and in the same country
as the subject merchandise, and sold by Chia Far in the comparison
market during the POR, to be foreign like products for the purpose of
determining appropriate product comparisons to SSSSC sold in the United
States.
During the POR, Chia Far sold subject merchandise and foreign like
product that it made from hot- and cold-rolled stainless steel coils
(products covered by the scope of the order) purchased from
unaffiliated parties. Chia Far further processed the hot- and cold-
rolled stainless steel coils by performing one or more of the following
procedures: cold-rolling, bright annealing, surface finishing/shaping,
and slitting. We did not consider Chia Far to be the producer of the
merchandise under review if it performed only insignificant processing
on the coils (e.g., annealing, slitting, surface finishing). See
Stainless Steel Plate in Coils from Belgium: Final Results of
Antidumping Duty Administrative Review, 69 FR 74495 (Dec. 14, 2004),
and accompanying Issues and Decision Memorandum at Comment 4 (listing
painting, slitting, finishing, pickling, oiling, and annealing as minor
processing for flat-rolled products). Furthermore, we did not consider
Chia Far to be the producer of the cold-rolled products that it sold if
it was not the first party to cold-roll the coils. The cold-rolling
process changes the surface quality and mechanical properties of the
product and produces useful combinations of hardness, strength,
stiffness, and ductility. Stainless steel cold-rolled coils are
distinguished from hot-rolled coils by their reduced thickness, tighter
tolerances, better surface quality, and increased hardness which are
achieved through cold-rolling. Chia Far's subsequent cold-rolling of
the cold-rolled coils that it purchased may have modified these
characteristics to suit the needs of particular customers; however, it
did not impart these defining characteristics to the finished coils.
Thus, we considered the original party that cold-rolled the product to
be its producer.
Product Comparisons
The Department compared U.S. sales to sales made in the comparison
market within the contemporaneous window period, which extends from
three months prior to the month in which the first U.S. sale was made
until two months after the month in which the last U.S. sale was made.
See 19 CFR 351.414(e)(2). Where there were no sales of identical
merchandise made in the comparison market in the ordinary course of
trade, the Department compared U.S. sales to sales of the most similar
foreign like product made in the ordinary course of trade. In making
product comparisons, the Department selected identical and most similar
foreign like products based on the physical characteristics reported by
Chia Far in the following order of importance: grade, hot- or cold-
rolled, gauge, surface finish, metallic coating, non-metallic coating,
width, temper, and edge.
Export Price and Constructed Export Price
The Department based the price of Chia Far's U.S. sales of subject
merchandise on EP or CEP, as appropriate. Specifically, when Chia Far
sold subject merchandise to unaffiliated purchasers in the United
States prior to importation and CEP was not otherwise warranted based
on the facts of the record, we based the price of the sale on EP, in
accordance with section 772(a) of the Act. When Chia Far sold subject
merchandise to unaffiliated purchasers in the United States through its
U.S. affiliate, Lucky Medsup, we based the price of the sale on CEP, in
accordance with section 772(b) of the Act.
We based EP on packed prices to the first unaffiliated purchaser in
the United States. We made deductions from the starting price for
foreign inland freight expenses, foreign brokerage and handling
expenses, international freight expenses, marine insurance expenses,
container handling charges, harbor maintenance fees, and certificate-
of-origin fees, in accordance with section 772(c)(2)(A) of the Act.
We based CEP on packed prices sold to the first unaffiliated
purchaser in the United States. We made deductions for foreign inland
freight expenses, foreign brokerage and handling expenses, container
handling expenses, foreign harbor construction expenses, international
freight expenses, marine insurance expenses, U.S. duty expenses, U.S.
brokerage and handling expenses, other U.S. transportation expenses,
and harbor maintenance fees, in accordance with section 772(c)(2)(A) of
the Act.
In accordance with section 772(d)(1) of the Act and 19 CFR
351.402(b), we deducted from CEP those selling expenses associated with
economic activities occurring in the United States, including direct
selling expenses (i.e., imputed credit expenses, bank fees, and
warranties) and indirect selling expenses.
In addition, we deducted from the CEP starting price an amount for
CEP profit (i.e., profit allocated to expenses deducted under sections
772(d)(1) and (d)(2) of the Act), in accordance with sections 772(d)(3)
and 772(f) of the Act. We computed profit by deducting from the total
revenue realized on sales in both the U.S. and home markets all
expenses associated with those sales. We then allocated profit to the
expenses incurred with respect to U.S. economic activity, based on the
ratio of total U.S. expenses to total expenses for both the U.S. and
home markets.
Normal Value
A. Home Market Viability
In order 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 the volume of home market sales of the foreign like product
to the volume of U.S. sales of the subject merchandise, in accordance
with section 773(a)(1)(C) of the Act. Because the aggregate volume of
Chia Far's home market sales of the foreign like product is more than
five percent of the aggregate volume of its U.S. sales of subject
merchandise, we
[[Page 39060]]
based NV on sales of the foreign like product in the respondent's home
market.
B. Level of Trade
Section 773(a)(1)(B)(i) of the Act states that, to the extent
practicable, the Department will calculate NV based on sales at the
same LOT as the EP or CEP. Sales are made at different LOTs if they are
made at different marketing stages (or their equivalent). See 19 CFR
351.412(c)(2). Substantial differences in selling activities are a
necessary, but not sufficient, condition for determining that there is
a difference in the stages of marketing. Id. See also Notice of Final
Determination of Sales at Less Than Fair Value: Certain Cut-to-Length
Carbon Steel Plate From South Africa, 62 FR 61731, 61732 (Nov. 19,
1997) (Plate from South Africa). In order to determine whether the
comparison market sales were at different stages in the marketing
process than the U.S. sales, we reviewed the distribution system in
each market (i.e., the chain of distribution), including selling
functions, class of customer (customer category), and the level of
selling expenses for each type of sale.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs
for EP and comparison market sales (i.e., NV based on either home
market or third country prices),\7\ 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 Act. See Micron Tech., Inc. v.
United States, 243 F.3d 1301, 1313-14 (Fed. Cir. 2001).
---------------------------------------------------------------------------
\7\ Where NV is based on constructed value (CV), we determine
the NV LOT based on the LOT of the sales from which we derive
selling expenses, general and administrative (G&A) expenses, and
profit for CV, where possible.
---------------------------------------------------------------------------
When the Department is unable to match U.S. sales of the foreign
like product in the comparison market at the same LOT as the EP or CEP,
the Department may compare the U.S. sale to sales at a different LOT in
the comparison market. In comparing EP or CEP sales at a different LOT
in the comparison market, where available data make it practicable, we
make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally,
for CEP sales only, if the NV LOT is at more advanced stage of
distribution than the CEP LOT and there is no basis for determining
whether the difference in LOTs between NV and CEP affects price
comparability (i.e., no LOT adjustment was practicable), the Department
shall grant a CEP offset, as provided in section 773(a)(7)(B) of the
Act. See Plate from South Africa, 62 FR at 61732-33.
In this administrative review, we obtained information from Chia
Far regarding the marketing stages involved in making the reported home
market and U.S. sales, including a description of the selling
activities performed by Chia Far for each channel of distribution. Chia
Far reported that it made EP sales in the U.S. market to distributors,
as well as CEP sales to its affiliate, Lucky Medsup. Chia Far reported
identical selling activities in selling to its unaffiliated U.S.
customers as it did in selling to Lucky Medsup. We examined the selling
activities performed for both channels and found that Chia Far
performed the following types of selling activities equally in selling
to its unaffiliated U.S. customers and to Lucky Medsup: (1) Price
negotiation and communication with the customer (i.e., either its
unaffiliated customers for EP sales, or Lucky Medsup for its CEP
sales); (2) arranging for freight and the provision of customs
clearance/brokerage services (where necessary); and, (3) provision of
general technical advice (where necessary) and quality assurance-
related activities, including warranty services. These selling
activities can be generally grouped into four selling function
categories for analysis: (1) Sales and marketing; (2) freight and
delivery; and (3) inventory maintenance and warehousing; and, (4)
warranty and technical support. Accordingly, we find that Chia Far
performed sales and marketing, freight and delivery services, and
warranty and technical support services for U.S. sales. Because the
level of Chia Far's selling activities did not vary by distribution
channel, we preliminarily determine that there is one LOT in the U.S.
market.
With respect to the home market, Chia Far reported that it made
sales to distributors and end users. We examined the selling activities
performed for home market sales and found that Chia Far performed the
following types of selling activities equally for sales to distributors
and end users: (1) Price negotiation and communication with the
customer; (2) arranging for freight (where necessary); (3) provision of
general technical advice (where necessary) and quality assurance-
related activities, including providing warranty services and rebates;
and, (4) post-sale warehousing/processing on request. Accordingly,
based on the selling functions analysis described above, we find that
Chia Far performed sales and marketing, freight and delivery services,
warranty and technical support services, and inventory maintenance and
warehousing for home market sales. Consequently, we preliminarily
determine that there is one LOT in the home market for Chia Far.
Finally, we compared the U.S. LOT to the home market LOT and found
that the selling functions performed for U.S. and home market customers
do not differ significantly. Specifically, although Chia Far performed
occasional warehousing and post-sale processing functions in the home
market that it did not perform on sales to the United States, we do not
find these differences to be material selling function distinctions
sufficient to warrant a separate LOT for purposes of these preliminary
results. Thus, we determine that the NV LOT is the same as the U.S.
LOT.
Regarding the CEP-offset provision, as described above, it is
appropriate only if the NV LOT is at more advanced stage of
distribution than the CEP LOT and there is no basis for determining
whether the difference in LOTs between NV and CEP affects price
comparability. Because we find that no difference in LOTs exists, we do
not find that a CEP offset is warranted.
C. Cost of Production Analysis
In the 2005-2006 administrative review, the most recently completed
segment of this proceeding as of the date of initiation of this review,
the Department determined that Chia Far sold the foreign like product
at prices below the cost of producing the product and excluded such
sales from the calculation of NV. See 2005-2006 Final, 73 FR at 6935.
As a result, the Department initiated an investigation to determine
whether Chia Far made home market sales during the POR at prices below
their COPs. See section 773(b)(2)(A)(ii) of the Act.
1. Calculation of COP
In accordance with section 773(b)(3) of the Act, for each foreign
like product sold by Chia Far during the POR, we calculated a weighted-
average COP based on the sum of Chia Far's materials and fabrication
costs, G&A expenses, and financial expenses.
2. Test of Comparison-Market Sales Prices
In order to determine whether sales were made at prices below the
COP on a product-specific basis, we compared Chia Far's weighted-
average COP to the prices of its home market sales of foreign like
product, as required under section 773(b) of the Act. In accordance
with sections 773(b)(1)(A) and (B) of the Act, in determining whether
to
[[Page 39061]]
disregard home market sales made at prices less than the COP, we
examined whether such sales were made: (1) In substantial quantities
within an extended period of time; and, (2) at prices which permitted
the recovery of all costs within a reasonable period of time. We
compared the COP to home market sales prices, less any applicable
movement charges and direct and indirect selling expenses.
3. Results of the COP Test
Pursuant to section 773(b)(2)(C) of the Act, where less than 20
percent of Chia Far's sales of a given product were made at prices less
than the COP, we did not disregard any below-cost sales of that product
because the below-cost sales were not made in ``substantial
quantities.'' Where 20 percent or more of Chia Far's sales of a given
product were made at prices less than the COP during the POR, we
determined such sales to have been made in ``substantial quantities''
within an extended period of time (i.e., one year) pursuant to sections
773(b)(2)(B) and (C) of the Act. Based on our comparison of POR average
costs to reported prices, we also determined, in accordance with
section 773(b)(2)(D) of the Act, that these sales were not made at
prices which would permit recovery of all costs within a reasonable
period of time. As a result, we disregarded the below-cost sales of
that product.
D. Calculation of Normal Value Based on Comparison Market Prices
We based NV for Chia Far on prices to unaffiliated customers in the
home market. We made deductions from the starting price, where
appropriate, for billing adjustments and rebates. We also made
deductions from the starting price for foreign inland freight expenses
under section 773(a)(6)(B)(ii) of the Act. In addition, we made
adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR
351.410(c) for differences in credit expenses, bank fees, and
warranties.
We also deducted home market packing costs and added U.S. packing
costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.
Finally, we made adjustments for differences in costs attributable to
differences in the physical characteristics of the merchandise in
accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
Currency Conversion
We made currency conversions into U.S. dollars in accordance with
section 773A of the Act and 19 CFR 351.415, based on the exchange rates
in effect on the dates of the U.S. sales as certified by the Federal
Reserve Bank.
Preliminary Results of the Review
We preliminarily determine that the following weighted-average
dumping margin exists for the respondent for the period July 1, 2007,
through June 30, 2008:
------------------------------------------------------------------------
Percent
Manufacturer/exporter margin
------------------------------------------------------------------------
Chia Far Industrial Factory Co., Ltd.......................... 4.30
------------------------------------------------------------------------
Disclosure and Public Hearing
The Department will disclose to parties the calculations performed
in connection with these preliminary results within five days of the
date of publication of this notice. See 19 CFR 351.224(b). Pursuant to
19 CFR 351.309(c)(ii), interested parties may submit cases briefs not
later than 30 days after the date of publication of this notice.
Rebuttal briefs, limited to issues raised in the case briefs, may be
filed not later than 35 days after the date of publication of this
notice. See 19 CFR 351.309(d)(1). Parties who submit case briefs or
rebuttal briefs in this proceeding are requested to submit with each
argument: (1) A statement of the issue; (2) a brief summary of the
argument; and (3) a table of authorities. See 19 CFR 351.309(c)(2).
Pursuant to 19 CFR 351.310(c), interested parties who wish to
request a hearing, or to participate if one is requested, must submit a
written request to the Assistant Secretary for Import Administration,
Room 1870, within 30 days of the date of 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 issues to be
discussed. Id. Issues raised in the hearing will be limited to those
raised in the respective case briefs. The Department will issue the
final results of this administrative review, including the results of
its analysis of the issues raised in any written briefs, not later than
120 days after the date of publication of this notice, pursuant to
section 751(a)(3)(A) of the Act.
Assessment Rates
Upon completion of the administrative review, the Department shall
determine, and CBP shall assess, antidumping duties on all appropriate
entries, in accordance with 19 CFR 351.212. The Department will issue
appropriate appraisement instructions for the companies subject to this
review directly to CBP 15 days after the date of publication of the
final results of this review.
For Chia Far, we will calculate importer-specific ad valorem duty
assessment rates based on the ratio of the total amount of antidumping
duties calculated for the examined sales to the total entered value of
those sales.
We will instruct CBP to assess antidumping duties on all
appropriate entries covered by this review if any importer-specific
assessment rate calculated in the final results of this review is above
de minimis (i.e., less than 0.50 percent). Pursuant to 19 CFR
351.106(c)(2), we will instruct CBP to liquidate without regard to
antidumping duties any entries for which the assessment rate is de
minimis. See 19 CFR 351.106(c)(1). The final results of this review
shall be the basis for the assessment of antidumping duties on entries
of merchandise covered by the final results of this review and for
future deposits of estimated duties, where applicable.
The Department clarified its ``automatic assessment'' regulation on
May 6, 2003. See Antidumping and Countervailing Duty Proceedings:
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment
Policy Notice). This clarification will apply to entries of subject
merchandise during the POR produced by companies included in these
final results of review for which the reviewed companies did not know
that the merchandise they sold to the intermediary (e.g., a reseller,
trading company, or exporter) was destined for the United States. In
such instances, we will instruct CBP to liquidate unreviewed entries at
the all others rate if there is no rate for the intermediary involved
in the transaction. See Assessment Policy Notice for a full discussion
of this clarification.
Cash Deposit Requirements
The following cash deposit requirements will be effective for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of the
final results of this administrative review, as provided by section
751(a)(2)(C) of the Act: (1) The cash deposit rate for Chia Far will be
that established in the final results of this review, except if the
rate is less than 0.50 percent and, therefore, de minimis within the
meaning of 19 CFR 351.106(c)(1), in which case no cash deposit will be
required; (2) for previously reviewed or investigated companies not
participating in this review, the cash deposit rate will continue to be
the company-specific rate
[[Page 39062]]
published for the most recent period; (3) if the exporter is not a firm
covered in this review, or the LTFV investigation, but the manufacturer
is, the cash deposit rate will be the rate established for the most
recent period for the manufacturer of the merchandise; and, (4) the
cash deposit rate for all other manufacturers or exporters will
continue to be 12.61 percent, the all others rate made effective by the
LTFV investigation. See SSSSC Order, 64 FR at 40557. These deposit
requirements, when imposed, shall remain in effect until further
notice.
Notification to Importers
This notice also serves as a preliminary reminder to importers of
their responsibility under 19 CFR 351.402(f) 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.
These preliminary results of administrative review and notice are
issued and published in accordance with sections 751(a)(1) and
777(i)(1) of the Act and 19 CFR 351.221.
Dated: July 30, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-18722 Filed 8-4-09; 8:45 am]
BILLING CODE 3510-DS-P