65 FR 18043, April 6, 2000 A-583-080 Sunset Review Public Document MEMORANDUM TO: Robert S. LaRussa Assistant Secretary for Import Administration FROM: Jeffrey A. May Director Office of Policy SUBJECT: Issues and Decision Memo for the Sunset Review of the Antidumping Finding on Certain Carbon Steel Plate from Taiwan; Final Results of Expedited Review Summary We have analyzed the substantive responses of interested parties in the expedited sunset review of the antidumping finding covering certain carbon steel plate from Taiwan. We recommend that you approve the positions we have developed in the "Discussion of the Issues" section of this memorandum. Below is the complete list of the issues discussed in the substantive response we received in this expedited sunset review: 1. Likelihood of continuation or recurrence of dumping Weighted-average dumping margin Volume of imports 2. Magnitude of the margin likely to prevail Margins from investigation Use of a more recent margin History of the Finding The United States Department of Treasury ("the Treasury") published its final affirmative determination of sales at less than fair value ("LTFV") with respect to imports of carbon steel plate from Taiwan on February 14, 1979 (44 FR 9639). In this determination, the Treasury found a weighted-average dumping margin of 34 percent for the China Steel Corporation ("CSC"). On June 13, 1979, the Treasury published its "Finding of Dumping" with respect to carbon steel plate from Taiwan, T.D. 79-166 (44 FR 33877). (1) Since the issuance of the finding, the United States Department of Commerce ("the Department") has completed three administrative reviews. In the final results of the first and second administrative reviews the Department found an antidumping duty margin of 19.97 percent for CSC and all other manufacturers and producers. (2) In the final results of the third administrative review, CSC, the only exporter reviewed, received a zero dumping margin. (3) We note that, to date, the Department has not issued any duty absorption findings in this case. The finding remains in effect for all manufacturers and exporters of the subject merchandise from Taiwan. Background On September 1, 1999, the Department published the notice of initiation of the sunset review of the antidumping finding on carbon steel plate form Taiwan (63 FR 47767). The Department received Notices of Intent to Participate on behalf of Bethlehem Steel Corporation and U.S. Steel Group, a unit of USX Corporation ("the domestic interested parties"), within the deadline specified in section 351.218(d)(1)(i) of the Sunset Regulations. The domestic interested parties claimed interested party status under section 771(9)(C) of the Tariff Act of 1930, as amended ("the Act"), as U.S. manufacturers of carbon steel plate. We received a complete substantive response from the domestic interested parties on October 1, 1999, within the 30-day deadline specified in the Sunset Regulations under section 351.218(d)(3)(i). We did not receive a substantive response from any respondent interested party to this proceeding. As a result, pursuant to 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C) of the Department's Regulations, the Department determined to conduct an expedited, 120-day, review of this finding. In accordance with section 751(c)(5)(C)(v) of the Act, the Department may treat a review as extraordinarily complicated if it is a review of a transition order (i.e., an order in effect on January 1, 1995). The review at issue concerns a transition order within the meaning of section 751(c)(6)(C)(ii) of the Act. Therefore, the Department determined that the sunset review of the antidumping finding on carbon steel plate from Taiwan is extraordinarily complicated and extended the time limit for completion of the final results of this review until not later than March 29, 2000, in accordance with section 751(c)(5)(B) of the Act. (4) Discussion of the Issues In accordance with section 751(c)(1) of the Act, the Department conducted this sunset review to determine whether revocation of the antidumping finding would be likely to lead to continuation or recurrence of dumping. Section 752(c) of the Act provides that, in making this determination, the Department shall consider the weighted- average dumping margins determined in the investigation and subsequent reviews and the volume of imports of the subject merchandise for the period before and the period after the issuance of the antidumping finding. In addition, section 752(c)(3) of the Act provides that the Department shall provide to the International Trade Commission ("the Commission") the magnitude of the margin of dumping likely to prevail if the finding were revoked. Below we address the comments of the interested parties. Likelihood of Continuation or Recurrence of Dumping: Interested Party Comments In their substantive response, the domestic interested parties argue that revocation of the antidumping finding would likely lead to continuation or recurrence of dumping by Taiwanese manufacturers and exporters of the subject merchandise. The domestic interested parties assert that with the exception of de minimis shipments in 1997, Taiwanese producers have not shipped any subject merchandise to the United States in the last decade. (5) Moreover, the domestic interested parties note that the apparent reluctance to ship merchandise to the United States cannot be attributed to a prohibitive margin, since the current dumping margin is set at zero. They credit this cessation of imports to the inability of Taiwanese manufacturers/exporters to ship carbon steel plate to the United States at fair market value. In addition to the instant antidumping finding, the domestic interested parties note that Taiwanese steel manufacturers/exporters have a propensity to dump other steel products, not just in the United States, but in other countries as well. Therefore, they assert, it is reasonable to assume that Taiwanese manufacturers/exporters will dump carbon steel plate into the United States, just as they have recently dumped other steel products into the United States and other markets, if the antidumping finding were revoked. In summary, the domestic interested parties argue that the Department should determine that there is a likelihood that dumping would continue were the finding revoked because (1) of the Taiwanese manufacturers/exporters inability to sell the subject merchandise in the United States at fair market value; (2) the Taiwanese manufacturers/exporters propensity to dump other steel products in the United States and other markets; and (3) imports of the subject merchandise have virtually ceased since the imposition of the finding. Department's Position Drawing on the guidance provided in the legislative history accompanying the Uruguay Round Agreements Act ("URAA"), specifically the Statement of Administrative Action ("SAA"), H.R. Doc. No. 103- 316, vol. 1 (1994), the House Report, H.R. Rep. No. 103-826, pt.1 (1994), and the Senate Report, S. Rep. No. 103-412 (1994), the Department issued its Sunset Policy Bulletin providing guidance on methodological and analytical issues, including the basis for likelihood determinations. The Department clarified that determinations of likelihood will be made on an order-wide basis (see section II.A.2 of the Sunset Policy Bulletin). In addition, the Department indicated that it will normally determine that revocation of an antidumping duty order is likely to lead to continuation or recurrence of dumping where (a) dumping continued at any level above de minimis after the issuance of the order, (b) imports of the subject merchandise ceased after the issuance of the order, or (c) dumping was eliminated after the issuance of the order and import volumes for the subject merchandise declined significantly (see section II.A.3). Section 751(c)(4)(B) of the Act provides that, in addition to considering the guidance on likelihood cited above, the Department shall determine that revocation of the finding would be likely to lead to continuation or recurrence of dumping where a respondent interested party waives its participation in the sunset review. In this instant review, the Department did not receive a substantive response from any respondent interested party. Pursuant to section 351.218(d)(2)(iii) of the Sunset Regulations, this constitutes a waiver of participation. As noted above, in conducting its sunset reviews, the Department considers the weighted-average dumping margins and volume of imports when determining whether revocation of an antidumping finding would lead to the continuation or recurrence of dumping. In their substantive response, the domestic interested parties note that with the exception of de minimis shipments in 1997, Taiwanese manufacturers have not shipped any subject merchandise to the United States in the last decade. (6) The Department, utilizing U.S. Customs import statistics, finds that import levels of the subject merchandise virtually ceased from 1989 through 1999. (7) The domestic interested parties noted that the dumping margin is currently set at zero, and the apparent unwillingness of the Taiwanese manufacturers/exporters to ship the subject merchandise into the United States while a zero dumping margin is in place, suggest that they could not sell their products in the United States at fair market value. However, the fact that CSC chose not to export the subject merchandise during a period when the dumping margin was set at zero, does not necessarily mean that they could not sell at fair market value. In fact, in order to get a zero margin CSC had to ship and sell the subject merchandise at fair market value. In any event, it is not necessary to speculate on CSC's reason for not shipping as it has waived participation in this review. Therefore, given that (i) import volumes ceased since the imposition of the finding, with the exception of minimal imports in 1998; (ii) respondent interested parties waived participation in this review; and (iii) the absence of argument and evidence to the contrary, the Department determines that dumping is likely to continue or recur if the finding were revoked. Magnitude of the Margin Likely to Prevail: Interested Party Comments In their substantive response, the domestic interested parties recommend that, consistent with the Sunset Policy Bulletin, the Department provide to the Commission the company-specific and "all others" rates from the original investigation. At a minimum, the domestic interested parties urge the Department to impose the margins found in the 1981 administrative review. Department's Position In the Sunset Policy Bulletin, the Department stated that it will normally provide to the Commission the margin that was determined in the final determination in the original investigation. Further, for companies not specifically investigated or for companies that did not begin shipping until after the finding was issued, the Department normally will provide a margin based on the "all others" rate from the investigation. (See section II.B.1 of the Sunset Policy Bulletin.) Exceptions to this policy include the use of a more recently calculated margin, where appropriate, and consideration of duty absorption determinations. (See sections II.B.2 and 3 of the Sunset Policy Bulletin.) The Department agrees with the domestic interested parties. We determine that the margins from the original investigation are probative of the behavior of Taiwanese manufacturers and exporters of carbon steel plate if the finding was revoked, because they are the only calculated rates which reflect the behavior of exporters without the discipline of the finding in place. Therefore, the Department will report to the Commission the company-specific and "all others" rates from the original investigation as contained in the Final Results of Review section of this decision memo. Final Results of Review We determine that revocation of the antidumping finding on carbon steel plate from Taiwan would be likely to lead to continuation or recurrence of dumping at the following percentage weighted-average margins: Manufacturer/Exporter Margin (percent) ------------------------------------------------------------------ China Steel Corporation . . . . . . . . . . . . . . . 34.00 All Others . . . . . . . . . . . . . . . . . . . . . . 34.00 ------------------------------------------------------------------ Recommendation Based on our analysis of the substantive responses received, we recommend adopting all of the above positions. If these recommendations are accepted, we will publish the final results of review in the Federal Register. AGREE ____ DISAGREE____ Joseph A. Spetrini Acting Assistant Secretary, for Import Administration (Date) _________________________________________________________________ footnotes: 1. The Treasury did not publish a company specific or an "all others" rate in their "Finding of Dumping." Therefore, when rates have not been published in a finding/order, it has been the Department's policy to rely on rates published in the LTFV determination. 2. See Carbon Steel Plate from Taiwan; Final Results of Administrative Review of Antidumping Duty, 46 FR 48280 (October 1, 1981) (1st review); and Carbon Steel Plate from Taiwan; Final Results of Administrative Review of Antidumping Duty, 47 FR 13547 (March 31, 1982) (2nd review). 3. See Carbon Steel Plate from Taiwan; Final Results of Administrative Review of Antidumping Duty, 48 FR 43366 (September 23, 1983). 4. See Extension of Time Limit for Final Results of Five-Year Reviews, 64 FR 71726 (December 22, 1999). 5. The domestic interested parties made a correction to their substantive response, noting that shipments of carbon steel plate from Taiwan to the United States were made in 1998 not 1997. See memo to file dated March 23, 2000. 6. See memo to file dated March 23, 2000, regarding the correction to the domestic interested parties' substantive response. 7. In 1998 the Taiwanese shipped 202.2 tons of carbon steel plate into the United States.