Cold-Rolled Stainless Steel Sheet From Germany; Final Results of Antidumping Duty Administrative Review

DEPARTMENT OF COMMERCE

[A-428-013]

Cold-Rolled Stainless Steel Sheet From Germany; Final Results of

Antidumping Duty Administrative Review

agency: International Trade Administration/Import Administration,

Department of Commerce.

action: Final results of antidumping duty administrative review.

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summary: On May 21, 1992, the Department of Commerce issued the final

results of its administrative review of the antidumping duty order on

cold-rolled stainless steel sheet from the Federal Republic of Germany.

We conducted this antidumping duty administrative review pursuant to a

remand order from the U.S. Court of International Trade in Krupp Stahl,

A.G., et al. v. United States (Slip Op. 91-31, April 19, 1991).

In that decision, the court ruled that the Department had illegally

applied its automatic assessment regulation to Krupp's December 1982

through June 1983 entries because the original less-than-fair-value-

investigation was initiated prior to the October 30, 1984, amendment to

the Tariff Act of 1930 and prior to the October 22, 1986, amendment to

the effective date provision of the 1984 Act. Because the 1984 and 1986

amendments are not retroactive, the court held that Krupp was entitled

to an automatic review of its entries.

The review covers one manufacturer/exporter of subject merchandise,

Krupp Stahl, A.G., and the period December 17, 1982 through June 23,

1983. The final margin is 27 percent. The final results of this review

were affirmed by the Court on May 26, 1993, in Krupp Stahl, A.G., et

al. v. United States, 822 F. Supp. 789 (CIT 1993). The Court's opinion

was not appealed; therefore, we are publishing the final results of the

administrative review. Attached is the notice of Final Results of

Antidumping Duty Administrative Review; Cold-Rolled Stainless Steel

Sheet from Germany, as issued on May 21, 1992.

EFFECTIVE DATE: April 5, 1994.

for further information contact: Wendy J. Frankel, Office of

Antidumping Compliance, International Trade Administration, U.S.

Department of Commerce, Washington, DC 20230; telephone: (202) 482-

0367.

This notice is in accordance with section 751(a)(1) of the Tariff

Act of 1930, as amended.

Dated: March 22, 1994.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

Cold-Rolled Stainless Steel Sheet From Germany; Final Results of

Antidumping Duty Administrative Review

AGENCY: International Trade Administration/Import Administration,

Department of Commerce.

ACTION: Final results of antidumping duty administrative review.

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SUMMARY: On November 7, 1991, the Department of Commerce published the

preliminary results of its administrative review of the antidumping

duty order on cold-rolled stainless steel sheet from the Federal

Republic of Germany (56 FR 56976). We have conducted this antidumping

duty administrative review pursuant to a remand order from the U.S.

Court of International Trade in Krupp Stahl, A.G., et al. v. United

States (Slip Op. 91-31, April 19, 1991). The review covers one

manufacturer/exporter of subject merchandise, Krupp Stahl, A.G., and

the period December 17, 1982 through June 23, 1983. Based on our

analysis of the comments received, we have not changed the preliminary

results. The final margin is listed below in the section ``Final

Results of Review.''

EFFECTIVE DATE: April 5, 1994.

FOR FURTHER INFORMATION CONTACT: Jackie Johnson or Wendy Frankel,

Office of Agreements Compliance, International Trade Administration,

U.S. Department of Commerce, Washington, DC 20230; telephone (202) 482-

3793 or -0367.

SUPPLEMENTARY INFORMATION:

Background

On November 7, 1991, the Department of Commerce (the Department)

published in the Federal Register (56 FR 56976) the preliminary results

of its administrative review of the antidumping duty order on certain

cold-rolled stainless steel sheet from Germany (48 FR 28680, June 23,

1983). In the notice of preliminary results of review, we noted that

Krupp Stahl, A.G. (Krupp), failed to respond to our questionnaire

issued in July 1991. On September 12, 1991, Krupp advised us that in

1989 it had destroyed the records for the December 1982-June 1983

review period, because German law does not require that business

records be retained beyond a minimum period of time. In addition, we

noted that after searching our files we were only able to locate the

public version of the narrative portion of Krupp's responses to the

Department's original and supplemental questionnaires issued in 1983

and 1984. Because that information was insufficient for purposes of

conducting an administrative review and because Krupp did not respond

to our questionnaire because it had destroyed all supporting

documentation, we used the best information available (BIA) for the

preliminary results of review.

Subsequent to publication of the notice of preliminary results, we

discovered a few boxes labeled with the administrative proceeding

number relevant to this case in an annex to the Department's Central

Records storeroom. We notified the parties to the proceeding of our

discovery and suspended the briefing and hearing schedule until the

Department could thoroughly review all the documents contained in those

boxes to determine which, if any, might be relevant to the instant

period of review.

The documents represented submissions from the original less than

fair value (LTFV) investigation, and from the first and second

administrative reviews. They contained information from other German

producers as well as from Krupp. There were three computer tapes in the

boxes. We were able to read two of the tapes which contained data

relevant to the LTFV investigation. The third tape could not be

formatted based on any of the formatting instructions provided in

either the LTFV or first review questionnaire and supplemental

responses, indicating that the tape did not pertain to the information

contained in those responses.

Based upon its review of all of the documents found in the Central

Records annex, the Department determined that the information either

pertained to a different company, covered an irrelevant time period, or

was not in a useable computer format for purposes of conducting a

dumping analysis. On March 2, 1991, the Department contacted counsel

for Krupp and counsel for the Petitioner to inform them of the results

of our examination of the information. At that time a revised schedule

was outlined to allow adequate time for comments and rebuttal comments.

At the request of the respondent, we held a public hearing on April 14,

1992. The Department has now completed this administrative review in

accordance with section 751 of the Tariff Act of 1930, as amended (the

Tariff Act).

Scope of the Review

Imports covered by the review are shipments of cold-rolled

stainless steel sheet whether or not corrugated or crimped and whether

or not pickled; not cut, not pressed and not stamped to non-rectangular

shape; not coated or plated with metal, and under 0.1875 inch in

thickness and over 12 inch in width. Until January 1, 1989, this

merchandise was classifiable under item number 607.9020 of the Tariff

Schedules of the United States Annotated (TSUSA). Since that date, this

merchandise is classifiable under the Harmonized Tariff Schedules (HTS)

item numbers 7219.32.00, 7219.33.00, 7219.34.00, 7219.35.00,

7219.90.00, 7220.20.10, and 7220.90.00. Like the TSUSA numbers, the HTS

numbers are provided for convenience and Customs purposes only. The

written product description remains dispositive.

This review covers the shipments of one manufacturer/exporter of

cold-rolled stainless steel sheet from the Federal Republic of Germany

to the United States, Krupp, and the period December 17, 1982 through

June 23, 1983.

Analysis of Comments Received

We invited interested parties to comment on the preliminary

results. The Department received comments and rebuttal comments from

both parties.

Comment 1: The petitioner notes that Krupp admitted that in 1989 it

destroyed all records relevant to the period of review and, therefore,

was unable to respond to the Department's questionnaire issued in July

1991. Because of Krupp's actions, the petitioner contends that Krupp

has significantly impeded the Department's conduct of this review in

that the Department now is unable to verify the accuracy and

completeness of the information submitted in Krupp's 1983 and 1984

responses to the Department's earlier questionnaires. Petitioner

asserts that destruction of relevant records during an ongoing judicial

proceeding where Krupp was aware that the Court might remand the case

to the Department for administrative review does not, contrary to

Krupp's claim, ``demonstrate [ ] a willingness'' to cooperate. Given

the circumstances, petitioner argues that the Department is obligated

to use BIA based on an adverse inference.

Department's Response: On September 12, 1991, Krupp informed the

Department that in 1989 it destroyed all data relevant to the period

under review, because German law does not require that records be

maintained for more than five years. Because of its actions, Krupp

stated that it was unable to respond to our July 1991 questionnaire. In

addition, Krupp's destruction of its records prevented the Department

from conducting a verification of what few written submissions of

factual information remain in the Department's files from Krupp's 1983

and 1984 submissions. In reviews such as this one, involving old data,

the Department may conduct a verification. See Television Receivers,

Monochrome and Color from Japan; Final Results of Antidumping Duty

Administrative Review, 54 FR 13917 (Apr. 6, 1989). In 1988 we verified

information covering the period April 1983 through August 1983

submitted by two companies subject to the Japanese television finding.

See, also, Memorandum For the File from Laurie Lucksinger and Jim

Arnold, dated May 28, 1987, regarding Large Power Transformers from

Italy--Analysis for Preliminary Results of Review for Ansaldo, where we

verified data in 1987 covering sales in 1982.

While German law may prescribe a minimum required period for the

retention of business records, it is irrelevant to the current judicial

proceeding. Respondents have a responsibility to maintain documents

relevant to ongoing litigation. See Koyo Seiko Co., Ltd. v. United

States, Slip Op. 92-72 (CIT May 15, 1992) at 19. As a consequence of

its actions, Krupp explicitly acknowledges in its September 12, 1991

letter ``that the Department will be unable to complete the

administrative review in the manner contemplated by the Court of

International Trade'' in its remand opinion and recognizes that the

Department ``will thus be forced to use the best information

available'' (BIA) for this administrative review. Therefore, pursuant

to 776(c) of the Tariff Act we have continued to use BIA for these

final results.

Comment 2: Krupp alleges that the Department suggested, and later

confirmed, through a memorandum to the file that the Department had

destroyed Krupp's proprietary questionnaire responses submitted in 1983

and 1984.

Department's Position: The Department did not destroy documents

relevant to this period of review. Prior to publication of the

preliminary results of this administrative review, we were unable to

locate documents other than written public versions of Krupp's 1983 and

1984 responses to requests for information. Subsequent to publication

of the preliminary results of review, we discovered a few boxes of

documents bearing the administrative proceeding number relevant to this

case in an annex to the Central Records storeroom. A thorough review of

the information contained in those documents revealed that it

``pertained either to a different company, an irrelevant period of

review, or was in an unusable computerized format for purposes of a

dumping analysis.'' See Memorandum to the File from Jackie Johnson,

Case Analyst, dated March 2, 1991. Other than indicating what the

Department was ultimately able to locate in its files, the memorandum

contains no statement that any of Krupp's files were destroyed, nor

does the memorandum contain any implication that this was done.

Accordingly, contrary to Krupp's allegations, the memorandum does not

support the contention that the Department destroyed any documents

whatsoever.

Comment 3: Krupp argues that the statutory language and legislative

history of sections 776(b) and (c) of the Tariff Act explicitly

prohibit the Department from using information submitted in support of

a petition as BIA in an administrative review. Krupp contends that

petition information may only be used for purposes of a final BIA

determination in an investigation.

The petitioner supports the Department's use of an adverse BIA rate

based on information from the petition arguing that the Department's

regulations not only allow the Department the discretion to determine,

on a case-by-case basis, what is the best information available, but

explicitly allow for the use of information submitted in support of a

petition as BIA. See 19 CFR 353.37.

Department's Position: We do not agree with Krupp's interpretation

that either the statute or its legislative history prohibits the

Department from using the information submitted in support of a

petition as BIA for the margin in an administrative review. While

section 776(b) of the Tariff Act indicates that the Department ``may''

use information from the petition as a basis for a final determination

in an investigation, this section contains no prohibition, explicit or

otherwise, against using such information as a basis for the final

results of an administrative review. Indeed, section 776(c) of the

Tariff Act explicitly states that, in making its ``determinations under

this [sub]title,'' the Department ``shall, whenever a party * * *

refuses or is unable to produce information requested in a timely

manner and in the form required, or otherwise significantly impedes an

investigation, use the best information otherwise available.''

This section, which governs the use of BIA for all determinations

made under Subtitle IV of the Tariff Act, places no limitations on the

use of information from the petition for purposes of making a final BIA

determination in an administrative review.

Moreover, the legislative history of the 1984 amendments to section

776 of the Tariff Act places no limitations on the Department's use of

petition information for the purposes of making BIA determinations. The

House Report confirms that ``[a]s under present law, the administering

authority will use the best information available to it for its action

if it is unable to verify the accuracy of the information submitted.''

H.R. Rep. No. 98-725, 98th Cong., 2d Sess. 43 (1984). The Conference

Report is even more clear that the permissive nature of the statutory

language does not prohibit the use of petition information for BIA

purposes in administrative review:

The express reference in the statute to the use of information

submitted in support of the petition as the best information

available for purposes of final determinations in investigations

should not be interpreted as precluding the administering authority

from using the best information available for purposes of

administrative reviews.

Conf. Rep. No. 98-1156, 98th Cong., 2d. Sess. 177 (1984). As is

evident from the legislative history as well, in giving the Department

permissive use to employ petition information for BIA purposes in a

final determination in an investigation, Congress was careful not to

place any prohibitions on the use of BIA information for purposes of

administrative reviews, including the use of information submitted in

support of a petition.

Under Krupp's forced interpretation of the statutory language, the

Department could not even use petition information as a basis for a

preliminary BIA determination in an investigation. Such interpretation

would render the Department powerless to secure the cooperation

required to conduct investigations and administrative reviews. However,

the Court, in Krupp Stahl A.G. v. United States, 553 F. Supp. 394 (CIT

1982) (Krupp I), has already shown such an interpretation to be invalid

as it denied Krupp's motion for a preliminary injunction to enjoin the

Department from using petition information to make a preliminary BIA

determination in the underlying investigation of this case.

In addition, the Court, in Rhone Poulenc, Inc. v. United States,

899 F.2d 1185 (Fed. Cir. 1990), stated that the Department's BIA

presumption ``implements the basic purpose of the statute'' and

``effectively induces [respondents] to comply with agency

questionnaires; an important practical consideration since the ITA has

no subpoena power.'' Id. at 1191. As such, the BIA rule can be viewed

as ```an investigative tool, which [the] agency may weld as an informal

club over recalcitrant parties * * * whose failure to cooperate may

work against their best interest.''' Id., citing Atlantic Sugar, Ltd.

v. United States, 744 F.2d 1556, 1560 (Fed. Cir. 1984).

Accordingly, based on the plain language of the statute, a clear

reading of the legislative history, and mindful of relevant Court

opinions on the application of the BIA provision of the statute, the

Department must reject Krupp's interpretation as contrary to all three.

We conclude, therefore, that there is no legal basis which would

prevent the Department from using petition information for purposes of

the final results of the administrative review in question.

Comment 4: Krupp also claims that the Department's use of

information submitted in support of the petition as BIA for this

administrative review is an unprecedented departure from Department

practice. Krupp contends that the Department has clearly and repeatedly

stated that its policy is to use as BIA the higher of the highest rate

for any firm: in the current review; a previous review; or the final

LTFV determination.

Krupp notes that in Replacement Parts for Self-Propelled Bituminous

Paving Equipment From Canada; Final Results of Antidumping Duty

Administrative Review, 56 FR 47451 (September 19, 1991) (Canadian

Paving Equipment), the Department discussed that in the preliminary

results of review that it had the authority to consider petition

information as BIA. However, the Department rejected the petition

information for purposes of BIA in the final results of review, despite

the respondent's repeated failure to respond to the Department's

requests for information. Citing industrial Belts and Components and

Parts Thereof, Whether Cured or Uncured, From the Federal Republic of

Germany; Preliminary Results of Antidumping Duty Administrative Review,

56 FR 2500 (January 23, 1991) (German Belts), Krupp contends that the

Department's statement that it preliminarily used a rate from the

petition as BIA is misleading, because the rate used is actually the

margin from the final determination of the fair value investigation.

Department's Position: As we stated in Canadian Paving Parts,

``because each investigation and administrative review present the

Department with a unique set of facts and circumstances, the Department

often must select an appropriate unique BIA rate to achieve the

purpose'' of the statute. Id. at 47453. See also Final Results of

Antidumping Duty Administrative Review; Steel Jacks from Canada, 52 FR

32957 (Sept. 1, 1987) (``Selection of the best information is made on a

case-by-case basis.'').

In Canadian Paving Parts we selected a less adverse BIA for the

final results of review rather than a higher rate based on information

submitted in support of the petition because the respondent had made

several attempts to cooperate with our requests. However, the only

reason the Department decided not to use the petition-based rate for

the final results of the review was because the respondent made some

attempt to cooperate, not because the Department determined it was

legally precluded from doing so.

Contrary to Krupp's assertions, the Department has used petition-

based rates as BIA in numerous administrative reviews. For example, in

the administrative review of Antifriction Bearings (Other Than Tapered

Roller Bearings) and Parts Thereof from Germany, 56 FR 31692 (July 11,

1991) (AFBs), we applied the most adverse BIA to companies who refused

to respond to the Department's questionnaire or otherwise significantly

impeded the conduct of the administrative review. While the notice of

final results indicated that the rate used as BIA was the highest rate

from the final determination of sales at LTFV, the final LTFV

determination notice clearly stated that the information used as BIA

for that determination had been submitted in support of the petition.

Also, in Cellular Mobile Telephones and Subassemblies from Japan; Final

Results of Antidumping Duty Administrative Review, 54 FR 48011 (Nov.

20, 1989) (CMTs), and in Industrial Belts and Components and Parts

Thereof, Whether Cured or Uncured, From the Federal Republic of

Germany; Final Results of Antidumping Duty Administrative Review, 56 FR

9673 (Mar. 7, 1991) (German Belts), we used, as BIA, margins from the

final LTFV determinations, which were based on information submitted in

support of the original petitions. See CMTs final LTFV determination,

50 FR 45447 (Oct. 31, 1985), and German Belts final LTFV determination,

54 FR 15505 (Apr. 18, 1989), respectively.

Comment 5: Citing Rhone Poulenc, where the Court found that it is

an acceptable interpretation of the best information statute that the

Department can presume that the highest prior margin is the most

probative of current margins in BIA situations, Krupp asserts that the

Department may only consider prior margins for purposes of BIA. Krupp

argues that, because the petition-based BIA preliminary determination

rate was superseded by a final calculated determination rate in the

LTVF investigation, the preliminary LTFV rate ``is not a prior margin''

and thus may not be used as BIA for the final results of this

administrative review.

In addition, Krupp argues that the Department itself declared the

rates established in this preliminary determination ``no longer in

effect,'' in the Final Determination of Sales at Less Than Fair Value;

Certain Stainless Steel Sheet and Strip Products from the Federal

Republic of Germany, 48 FR 20459 (May 6, 1983). Krupp goes on to argue

that the Court in Krupp I would have found Krupp's challenge to the

Department's petition-based preliminary BIA margin to be ripe for

review if the Court thought that the preliminary determination ``could

determine the final liquidation rate for Krupp's entries,

notwithstanding a final determination.''

The Petitioner states that application of the 27 percent rate in

this case represents a reasonable exercise of the Department's

discretion to determine, on a case-by-case basis, what is the best

information available. The Petitioner argues that 19 CFR 353.37(b)

provides for the use of petition information as BIA. The Petitioner

further contends that, as discussed in Rhone Poulenc, the statute

provides for the Department to presume that the highest prior margin is

the most probative when a company is non-responsive to the Department's

requests for information, otherwise, the respondent would have provided

current information demonstrating that the current margin is less. The

Petitioner argues that such a presumption must exist here since the

respondent failed to comply with the Department's request for

information and in fact destroyed all the records pertaining to the

instant period of review.

Department's Position: We disagree with Krupp's contentions that,

in an LTFV investigation, a preliminary determination rate based upon

the best information available--in this instance from information

submitted in support of the petition--is not a legitimate margin and,

thus, cannot be a ``prior margin'' which may serve as the basis for a

final rate in an administrative review. To the contrary, an affirmative

preliminary BIA rate, even if based on information submitted in support

of the petition, results in the suspension of liquidation and the

collection of cash deposits or bond. See section 733(d)(2) of the

Tariff Act. In addition, in Daewoo Electronics Co., v. United States,

712 F. Supp. 931 (CIT 1989), the Court upheld the Department's

determination that an LTFV preliminary margin serves as a provisional

measures rate cap, with respect to merchandise entered between the

dates of the preliminary and final determinations. See section 737(a)

of the Tariff Act. In fact, because of the importance of the

preliminary margin, the Department has promulgated regulations

providing for the correction of clerical errors in preliminary

determinations of sales at LTFV. See 57 FR 1131 (Jan. 10, 1992).

Thus, a preliminary margin, whether it is a calculated rate or is a

petition-based BIA rate, has legal force and effect. As such, it serves

as a ``prior margin'' to the same extent as a final margin. In this

respect, Krupp's reliance on Rhone Poulenc is misplaced. While the

Federal Circuit did state that ``it reflects a common sense inference

that the highest prior margin is the most probative evidence of the

current margins,'' 899 F.2. at 1190, it placed absolutely no

qualifications on what constituted the ``highest prior margin.'' The

Court went on the explain that if this common sense inference were not

so, ``the [respondent], knowing of the rule, would have produced

current information showing the margin to be less.'' Id (emphasis in

original).

Notwithstanding its interpretation of the statutory language and

legislative history, even Krupp admits that information submitted in

support of the petition can be used as a BIA rate for an administrative

review. See Public Hearing Transcript (Apr. 14, 1992) (Transcript) at

42-43. Krupp, however, attempts to qualify the use of such information

by arguing that the petition-based BIA rate must also be the final

determination rate of the LTFV investigation. In other words, if the

preliminary determination is a BIA rate based on information from the

petition but is ``carried forward'' to the final determination, then it

becomes a ``prior margin.'' Transcript at 43. Once this has occurred,

then according to Krupp, the petition-based BIA rate may serve as the

basis for a BIA rate in an administrative review. Id. Such reasoning,

however, is based on the faulty premise that a preliminary margin is

not a ``real'' margin, and thus cannot be a ``prior margin.'' However,

as explained above, a preliminary margin is an actual margin to which

legal consequences attach and, thus, is as much a ``prior margin'' as

the rate for the final determination. Thus, Krupp's ``carried forward''

theory must be rejected as being without legal foundation.

Further, contrary to Krupp's contentions, the final LTFV

determination margin is no more representative of the period under

review than is the preliminary margin. Both of these margins are based

upon information which relates to a period prior to the period of

review. Indeed, in this instance because Krupp failed to respond to the

Department's information request, it has not demonstrated that the

final determination rate is any more probative of the period under

review than the preliminary rate. See Rhone Poulenc, 899 F. Supp. at

1190. As such, there is no record evidence to show that one is more or

less probative than the other as to what the actual dumping margins

would be for the period of review. This then is the reason for

undertaking an administrative review, i.e., to analyze information

concerning the actual entries for the review period so that any duties

that might be assessed on those entries would have been based on the

actual data relating to those entries.

However, when the administrative review process is thwarted, as it

has been in this case by Krupp's failure to provide information about

the entries subject to review, then the Department is forced to rely

upon the best information available. Under these circumstances the

court has clearly ruled that ``Commerce may exercise discretion in

determining what is the best information available when a [respondent]

has failed to supply requested information.'' Tai Yang Metal Industrial

Co., v. United States, 712 F. Supp. 973, 977 (CIT 1989), citing

Chemical Products Corp., v. United States, 645 F. Supp. 289, 295 (CIT

1986). Further, when the respondent fails to provide the requested

information, the use of BIA ``can be detrimental to [respondent's]

interests.'' Daewoo, 712, F. Supp. at 944. Thus, because of Krupp's

failure to comply with the Department's information request, it should

not find itself in a better position as a result of noncompliance than

it would had it provided the Department with complete, accurate, and

timely data. See Canadian Paving Parts, 56 FR at 47453. ``Otherwise,

alleged unfair traders would be able to control the amount of

antidumping duties by selectively providing the ITA with information.''

Olympic Adhesives, Inc., v. United States, 899 F. 2d 1565, 1572 (CIT

1990). Accord, Pistachio Group of Ass'n of Food Industries v. United

States, 671 F. Supp. 31, 40 (CIT 1987).

Krupp's speculations as to what the Court might have done in Krupp

I had it been able to divine the particular circumstance of this review

are also misplaced. In fact, there is nothing in the Court's opinion

even to suggest that it would have considered Krupp's challenge to the

preliminary determination ripe for review if it had known that margin

would be used as a BIA margin in the first administrative review

because of Krupp's failure to comply with the Department's information

request. To the contrary, after reviewing the facts surrounding the

preliminary determination, the Court found that ``the deposit of

estimated duties will not cause a hardship of the type which justifies

judicial intrusion into an ongoing administrative investigation.''

Krupp I, 553 F. Supp. at 396. Indeed, the Court saw the deposit of

estimated duties as being ``the normal consequences of involvement in

these investigations.'' Id.

The reason the Court found no hardship to Krupp is that the

preliminary margin is simply an estimate of the potential duties owed--

it does not represent an assessment rate for purposes of liquidation.

Under the statutory scheme, all of Krupp's entries subsequent to the

date of the preliminary LTFV determination would only be liquidated at

a rate determined on the basis of an administrative review of those

entries. If that assessment rate were determined to be higher than the

preliminary LTFV rate, Krupp would not be required to pay the

difference. Id. Thus, any so-called ``hardship'' that purportedly has

befallen Krupp is of its own making by virtue of its failure to comply

with the Department's information request, thereby resulting in the

assigning of an adverse BIA rate for the entries subject to review.

Comment 6: The Petitioner recites the history of this litigation

highlighting that, in its Motion for Summary Judgment, Krupp asked the

Court, among other alternative prayers for relief, to enjoin

liquidation of the December 1982 through May 1983 entries while

directing the Department to conduct an administrative review of those

entries.

Because the Court did not grant Krupp's request for a 7.76 percent

liquidation rate, but rather instructed the Department to conduct an

administrative review, the Petitioner asserts that Krupp's actions have

simply been an attempt to manipulate the outcome of the administrative

review process. The Petitioner concludes that if the Department were to

apply the 7.76 percent rate as BIA in these final results, the

respondent would in effect be rewarded for its lack of cooperation.

Department's Position: Because Krupp failed to respond to our most

recent questionnaire and destroyed its business documents, thus

precluding conduct of an administrative review and verification of the

written information already on the record, we agree with the Petitioner

that use of a less adverse rate as BIA in the instant review would be

inappropriate. In Anhydrous Sodium Metasilicate From France; Final

Results of Antidumping Duty Administrative Review, 53 FR 4195 (February

12, 1988), we stated that to use the information that the respondent

suggests as BIA ``would, in effect, reward the respondent for this

failure to provide an adequate response'' in the review.

Final Results of Review

Based on the Department's analysis of the comments received, the

final results of our review are unchanged from the preliminary results.

We determined that a 27 percent margin exists for Krupp.

The Department will instruct the U.S. Customs Service to assess

antidumping duties on all entries of this merchandise made by Krupp

during the period December 17, 1982 through June 23, 1983. The

Department will issue appraisement instructions directly to the Customs

Service.

On August 11, 1986, the Department published in the Federal

Register (51 FR 28739) a notice of revocation of the antidumping duty

order, effective March 1, 1986. This administrative review covering the

period December 17, 1982 through June 23, 1983, does not affect the

revocation of the antidumping duty order. Therefore, we will instruct

the Customs Service to continue to liquidate all entries of this

merchandise exported on or after March 1, 1986, without regard to

antidumping duties.

This administrative review and notice are in accordance with

section 751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR

353.22.

Dated: May 21, 1992.

Francis J. Sailer,

Acting Assistant Secretary for Import Administration.

[FR Doc. 94-8024 Filed 4-4-94; 8:45 am]

BILLING CODE 3510-DS-M