Oil Country Tubular Goods From Mexico; Notice of Termination of Antidumping Duty Administrative Review

DEPARTMENT OF COMMERCE

International Trade Administration

[A-201-817]

Oil Country Tubular Goods From Mexico; Notice of Termination of

Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice of termination of antidumping duty administrative

review.

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EFFECTIVE DATE: April 21, 1997.

SUMMARY: On September 17, 1996, the Department of Commerce (``the

Department'') published in the Federal Register (61 FR 48882) a notice

announcing the initiation of an administrative review of the

antidumping duty order on Oil Country Tubular Goods (``OCTG'') from

Mexico. This review covered the periods August 11, 1995 through July

31, 1996 for Drill Pipe and June 28, 1995 through July 31, 1996 for

OCTG Other Than Drill Pipe. This review has now been terminated as a

result of the withdrawal of the request for administrative review by

the petitioners and the absence of entries into the U.S. of subject

merchandise during the period of review by the only remaining party

requesting review.

FOR FURTHER INFORMATION CONTACT: Samantha Denenberg or Linda Ludwig,

Group III, Import Administration, International Trade Administration,

U.S. Department of Commerce, 14th Street and Constitution Avenue, NW,

Washington, D.C. 20230; telephone (202) 482-0413 or 482-3833,

respectively.

SUPPLEMENTARY INFORMATION:

Background

On August 29, 1996, Hylsa S.A. de C.V. (``Hylsa'') requested a

review of its sales. Additionally, petitioners requested a review of

Tubos de Acero de Mexico, S.H. (``TAMSA''), Tuberia Nacional S.A. de

C.V. (``TUNA''), and Hylsa. On October 4, 1996 and October 16, 1996

TAMSA and TUNA respectively filed letters certifying to the Department

that they did not export any subject merchandise that was entered for

consumption into the United States during the period of review (POR).

The Department sent no-shipment inquiries regarding TAMSA and TUNA to

U.S. Customs on October 28, 1996. Customs did not indicate that there

were any such entries. On December 9, 1996, Hylsa filed its response to

sections B and C of the Department's questionnaire for the 1995-96

review. On December 10, 1996, petitioners withdrew their review request

as to all Mexican producers of OCTG, including Hylsa. On December 18,

petitioners pointed out that Hylsa's December 9 questionnaire response

disclosed for the first time the fact that Hylsa had no customs entries

of OCTG during the POR. Hylsa has knowledge of entry dates of subject

merchandise. Petitioners requested that the

[[Page 19310]]

Department terminate the review as to Hylsa for this reason. On

December 26, Hylsa submitted comments responding to that request.

Petitioners cite Silicon Metal from Brazil: Final Results of

Antidumping Duty Administrative Review (``92-93 Silicon Metal Final''),

61 Fed. Reg. 46763, 46765 (September 5, 1996) as the precedent to this

case. The 92-93 Silicon Metal Final findings stated that review of a

margin may be based on sales during a POR, rather than the prices of

entries during the POR, when there are entries during the POR. All

respondents in the 92-93 Silicon Metal Final had at least one

consumption entry into U.S. Customs territory during the POR (61 FR At

46765). Hylsa, in contrast, had no such entries during the POR. Without

entries during the POR, there is nothing upon which duties determined

in the course of the review may be assessed.

Hylsa argued that petitioners' request for termination of the

review was based on a misreading of the antidumping statute and was

inconsistent with the Department's regulations and the Department's

past decisions. Hylsa stated that the Department was required by its

statute and regulations to conduct the review which it has requested in

order to determine a deposit rate based on Hylsa's own data, and

suggested that the Department use, for this purpose, Hylsa's sales

during the POR.

Analysis

Hylsa first argues that Section 751(a)(1) of the Tariff Act

requires the Department to conduct a review whenever, as in this case,

a request for review has been received. Hylsa's argument, however,

ignores the context of the administrative review provision upon which

it relies. Section 751(a) is entitled ``Periodic Review of Amount of

Duty.'' The other relevant portions of 751(a)(1) provide that if,

during the annual anniversary opportunity to request review, ``a

request for such a review has been received,'' the Department shall,

when the requested review is of an antidumping order, ``review and

determine, (in accordance with paragraph (2)), the amount of any

antidumping duty,'' and (in a section applying to all administrative

reviews) ``shall publish in the Federal Register the results of such

review, together with notice of any duty to be assessed, estimated duty

to be deposited, or investigation to be resumed.'' Tariff Act of 1930,

as amended, Sec. 751(a), 19 U.S.C. Sec. 1675(a) (emphasis added).

Thus, the request which requires the Department to conduct an

administrative review, is a request for a ``review of amount of duty,''

not a request for a review solely of the amount of estimated duty to be

deposited. Further, upon a request for ``such a review,'' the

Department is directed to conduct at section 751(a)(1)(B) is also a

review of ``the amount of any antidumping duty.'' There is no

requirement here, either, that the Department independently review the

amount of the estimated duty deposit. Rather, the review is to be

conducted ``in accordance with paragraph (2).'' Section 751(a)(2) of

the Act specifies that, for the purposes of a review under section

751(a)(1)(B), the Department shall determine ``the normal value and

export price (or constructed export price) of each entry of the subject

merchandise, and * * * the dumping margin for each such entry.'' 19

U.S.C. Sec. 1675(A)(2)(A)(I) (emphasis added). In addition, section

1675(a)(2)(C) requires that these determinations shall be the basis for

both the assessment of antidumping duties and the deposit of estimated

antidumping duties. Because Hylsa had no consumption entries during the

POR, any margin which were to be calculated based upon Hylsa's sales

during the POR would not be applied to any entries. Thus, there is no

``amount of duty'' to review, and there is no requirement under section

751(a) for the Department to grant Hylsa's request for review for the

sole purpose of reviewing the rate of estimated duty deposit. We note

that the Department clearly stated, in the notice of opportunity to

request a review of the antidumping order on OCTG, that a review would

be initiated based on ``a request for review of entries covered by an

order or finding listed in this notice and for the period identified

above * * *'' Antidumping or Countervailing Duty Order, Finding, or

Suspended Investigation; Opportunity to Request Administrative Review,

61 FR 41,768, at 41,771 (August 12, 1996) (emphasis added).

Hylsa has entries during the 1996-1997 POR and can request a review

of those entries during the appropriate anniversary month. To the

extent that the ``all others'' cash deposit rate exceeds Hylsa's

calculated margin for those 1996-1997 entries, it will receive a

refund, with interest.

Hylsa also argues that the Department's regulations require that we

conduct a review at this time in order to allow them to obtain a

company-specific duty deposit rate. Hylsa contends that Section 353.22

of the regulations states that the Department ``will'' conduct a review

and issue preliminary and final results whenever a timely request for

review has been made. Hylsa's regulatory argument suffers from the same

flaw as its statutory argument. Section 353.22 construes the

administrative review provisions of the statute; thus, the review

provided for is the same review of antidumping duty referred to in the

statute. The regulatory provisions of Section 353.22(c) relied on by

Hylsa deal with procedural time deadlines for initiation, verification,

and issuance of preliminary and final determinations in such reviews of

antidumping duty, and create no new rights to reviews for other

purposes.

Finally, Hylsa argues that the Department's practice of reviewing

sales during the POR requires that it conduct a review of sales during

the 1995-1996 POR despite the fact that it had no entries during that

period. We note, however, that the Department's AD questionnaire

clearly instructed respondents to report U.S. sales entered during the

POR. Thus, with respect to this case the Department's intent was always

to review entries rather than sales. Respondent never raised its lack

of entries as an issue for the Department's consideration prior to the

submission of its response.

The administrative and judicial precedents cited by Hylsa in its

comments of December 26 are not on point. These cases support the

proposition that Commerce can base its margin calculation on sales

during the POR rather than entries during the POR; they do not address

whether any review at all may proceed in the absence of any entries to

which the resultant margin would be applied. In Portable Electric

Typewriters from Japan, 56 FR 56393, 56397 (Nov. 4, 1991), Commerce

analyzed sales during the POR, but applied the results to entries

during the POR. Color Picture Tubes from Japan, 55 FR 37915, 37917-18

(September 14, 1990), Gray Portland Cement from Mexico, 58 FR 25803,

25807 (Apr. 28, 1993), and Forklift Trucks from Japan, 57 FR 3167,

3177-78 (January 28, 1992) all stand only for the principle that there

need not be an exact correspondence between the sales upon which the

margin calculation is based and the entries to which that margin

calculation is applied for assessment purposes. As noted above, this

corresponds to the Department's position regarding which sales it will

review in calculating a margin for assessment purposes; these cases

also do not address whether a review may proceed in the absence of any

entries to which the resultant margin would be applied. Finally, Asahi

Chemical v. United States, 548 F. Supp. 1261 (CIT 1982), does not

address the question

[[Page 19311]]

raised by Hylsa's request for a sales-based no-entry review, because it

construed an earlier version of the statute which required that the

Department review every case every year. Judicial speculation as to how

Congress might have dealt with the problem of conducting a statutorily

required review in a case in which there were no entries is no longer

relevant, now that such reviews are no longer required by law.

Because petitioners have withdrawn their request for review of all

parties for which review was requested for the 95-96 POR, and because

the only remaining firm requesting review (Hylsa) made no entries into

the customs territory of the United States during that POR, the

Department is therefore terminating this review.

Notification of Interested Parties

This notice also serves as a reminder to parties subject to

administrative protective order (APO) of their responsibility

concerning the disposition of proprietary information disclosed under

APO in accordance with 19 CFR Sec. 353.34(d). Timely written

notification of return/destruction of APO materials or conversion to

judicial protective order is hereby requested. Failure to comply with

the regulations and the terms of an APO is a sanctionable violation.

Timely written notification of the return/destruction of APO materials

or conversion to judicial protective order is hereby requested.

This administrative review and notice are in accordance with

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

CFR Sec. 353.22.

Dated: April 14, 1997.

Joseph A. Spetrini,

Deputy Assistant Secretary, Enforcement Group III.

[FR Doc. 97-10243 Filed 4-18-97; 8:45 am]

BILLING CODE 3510-DS-P