Steel Wire Rope From the Republic of Korea; Final Results of Antidumping Duty Administrative Review and Revocation in Part of Antidumping Duty Order

DEPARTMENT OF COMMERCE

International Trade Administration

[A-580-811]

Steel Wire Rope From the Republic of Korea; Final Results of

Antidumping Duty Administrative Review and Revocation in Part of

Antidumping Duty Order

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice of Final Results of Antidumping Duty Administrative

Review and Revocation in Part of Antidumping Duty Order.

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SUMMARY: On December 3, 1996, the Department of Commerce (the

Department) published the preliminary results of its 1995-96

administrative review of the antidumping duty order on steel wire rope

from the Republic of Korea and intent to revoke in part (61 FR 64058).

The review covers 12 manufacturers/exporters for the period March 1,

1995, through February 29, 1996 (the POR). We have analyzed the

comments received on our preliminary results and have determined that

no changes in the margin calculations are required. The final weighted-

average dumping margins for each of the reviewed firms are listed below

in the section entitled ``Final Results of Review.''

EFFECTIVE DATE: April 9, 1997.

FOR FURTHER INFORMATION CONTACT: Matthew Rosenbaum or Thomas O. Barlow,

Import Administration, International Trade Administration, U.S.

Department of Commerce, 14th Street and Constitution Avenue,

Washington, D.C. 20230; telephone: (202) 482-4733.

SUPPLEMENTARY INFORMATION:

The Applicable Statute

Unless otherwise indicated, all citations to the Tariff Act of

1930, as amended (the Act), are references to the provisions effective

January 1, 1995, the effective date of the amendments made to the Act

by the Uruguay Round Agreements Act (URAA). In addition, unless

otherwise indicated, all citations to the Department's regulations are

to the current regulations, as amended by the interim regulations

published in the Federal Register on May 11, 1995 (60 FR 25130).

Background

On December 12, 1996, the Department published in the Federal

Register the preliminary results of its 1995-96 administrative review

of the antidumping duty order on steel wire rope from the Republic of

Korea and intent to revoke in part (61 FR 64058) (Preliminary Results).

We gave interested parties an opportunity to comment on our preliminary

results. We received case briefs from the petitioner, the Committee of

Domestic Steel Wire Rope and Specialty Cable Manufacturers (the

Committee), and rebuttal briefs from six respondents, including Chung-

Woo Rope Co., Ltd. (Chung Woo), Chun Kee Steel & Wire Rope Co., Ltd.

(Chun Kee), Manho Rope & Wire Ltd. (Manho), Kumho Wire Rope Mfg. Co.,

Ltd. (Kumho), Ssang Yong Steel Wire Co., Inc. (Ssang Yong), and Sungjin

Company (Sungjin). There was no request for a hearing.

We have conducted this administrative review in accordance with

section 751(a)(1) of the Tariff Act of 1930, as amended (the Act), and

19 CFR 353.22.

Revocation In Part

We are revoking the order for Chun Kee and Manho. Chun Kee and

Manho have sold the subject merchandise at not less than normal value

(NV) for three consecutive review periods, including this review.

Further, on the basis of no sales at less than NV for these periods and

the lack of any indication that such sales are likely in the future, we

have determined that Chun Kee and Manho are not likely to sell the

merchandise at less than NV in the future. Chun Kee and Manho have also

submitted certifications that they will not sell at less than NV in the

future, along with an agreement for immediate reinstatement of the

order if such sales occur. See our discussion in response to Comment 1

below.

Scope of Review

The product covered by this review is steel wire rope. Steel wire

rope encompasses ropes, cables, and cordage of iron or carbon steel,

other than stranded wire, not fitted with fittings or made up into

articles, and not made up of brass-plated wire. Imports of these

products are currently classifiable under the following Harmonized

Tariff Schedule (HTS) subheadings: 7312.10.9030, 7312.10.9060, and

7312.10.9090. Excluded from this review is stainless steel wire rope,

i.e., ropes, cables and cordage other than stranded wire, of stainless

steel, not fitted with fittings or made up into articles, which is

classifiable under HTS subheading 7312.10.6000. Although HTS

subheadings are provided for convenience and Customs purposes, our own

written description of the scope of this review is dispositive.

Use of Facts Otherwise Available

We have determined, in accordance with section 776(a) of the Act,

that the use of facts available is appropriate for Boo Kook Corporation

(Boo Kook), Dong-Il Steel Mfg. Co., Ltd. (Dong-Il), and Yeonsin Metal

(Yeonsin) because they did not respond to our antidumping

questionnaire. We find that these firms have not provided ``information

that has been requested by the administering authority.'' Furthermore,

we determine that, pursuant to section 776(b) of the Act, it is

appropriate to make an inference adverse to the interests of these

companies because they failed to cooperate by not responding to our

questionnaire.

Where the Department must base the entire dumping margin for a

respondent in an administrative review on facts otherwise available

because that respondent failed to cooperate, section 776(b) of the Act

authorizes the use of an inference adverse to the interests of that

respondent in choosing the facts available. Section 776(b) of the Act

also authorizes the Department to use as adverse facts available

information derived from the petition, the final determination, a

previous administrative review, or other information placed on the

record.

[[Page 17172]]

Section 776(c) of the Act provides that the Department shall, to the

extent practicable, corroborate secondary information from independent

sources reasonably at its disposal. The Statement of Administrative

Action (SAA) provides that ``corroborate'' means simply that the

Department will satisfy itself that the secondary information to be

used has probative value. (See H.R. Doc. 316, Vol. 1, 103d Cong., 2d

sess. 870 (1994).)

To corroborate secondary information, the Department will, to the

extent practicable, examine the reliability and relevance of the

information to be used. However, unlike other types of information,

such as input costs or selling expenses, there are no independent

sources for calculated dumping margins. Thus, in an administrative

review, if the Department chooses as total adverse facts available a

calculated dumping margin from a prior segment of the proceeding, it is

not necessary to question the reliability of the margin for that time

period. With respect to the relevance aspect of corroboration, however,

the Department will consider information reasonably at its disposal as

to whether there are circumstances that would render a margin not

relevant. Where circumstances indicate that the selected margin is not

appropriate as adverse facts available, the Department will disregard

the margin and determine an appropriate margin (see, e.g., Fresh Cut

Flowers from Mexico; Final Results of Antidumping Duty Administrative

Review, 61 FR 6812 (Feb. 22, 1996) (where the Department disregarded

the highest margin as adverse best information available (BIA) because

the margin was based on another company's uncharacteristic business

expense resulting in an unusually high margin)).

For a discussion of our application of facts available regarding

specific firms, see our response to Comment 3 below.

Analysis of Comments Received

Comment 1: The Committee contends that Chun Kee and Manho failed to

establish the second of three requisite regulatory criteria for

revocation of an antidumping duty order. It argues, citing Toshiba

Corp. v. United States, 15 CIT 597, 600 (1991), that the burden is on

the respondent requesting revocation to demonstrate, by placing

substantial evidence on the record, that there is no likelihood of a

resumption of sales at less than normal value and that Chun Kee and

Manho failed to demonstrate this.

The Committee claims that several factors demonstrate that Chun Kee

and Manho are likely to resume selling steel wire rope at less than

normal value. First, it contends that the U.S. steel wire rope market

is characterized by intensely competitive conditions among many foreign

suppliers who compete against one another based mainly on price.

According to the Committee, since the antidumping duty order on this

product went into effect (March 26, 1993), total U.S. imports of steel

wire rope have decreased and foreign competition has increased. The

Committee argues that these market trends place pressure on Chun Kee

and Manho to reduce their prices and remain competitive in the U.S.

market. The Committee further contends that these pressures are

intensified by the fact that both Chun Kee and Manho export only to the

United States and that the U.S. market represents a substantial

percentage of each company's total sales. The Committee contends that

neither Chun Kee nor Manho can afford to abandon the U.S. market and

must price their products competitively, forcing them sell steel wire

rope at the lowest possible price.

The Committee claims that the volatility of the Korean won makes it

inappropriate to conclude that there is no likelihood of a resumption

of sales at less than normal value. The Committee states that, in Brass

Sheet and Strip from Germany; Final Results of Antidumping Duty

Administrative Review and Determination Not to Revoke in Part, 61 FR

49731 (September 23, 1996) (Brass Sheet and Strip), the Department

determined that it could not conclude that there was no likelihood of a

resumption of sales at less than normal value, in part due to the

continued strengthening of the Deutsche mark. The Committee also notes

that in Titanium Sponge from Japan; Preliminary Results of Antidumping

Duty Administrative Review, 53 FR 26099 (July 11, 1988) (Titanium

Sponge), the Department refused to grant partial revocation due in part

to the decline in purchasing power of the U.S. dollar against the

Japanese yen.

The Committee claims that throughout the three periods of review in

this case, the Korean won appreciated against the U.S. dollar, which

increases the likelihood that a respondent's future sales will be made

at less than normal value. The Committee notes that, since the end of

this POR, the Korean won has depreciated quickly and steadily against

the U.S. dollar, illustrating the volatility of the Korean currency.

The Committee further notes that such volatility suggests that the

currency could experience a sudden and substantial appreciation in the

future. The Committee argues that this appreciation could force Korean

exporters to decrease their prices on steel wire rope sales to the

United States to maintain their competitiveness.

The Committee also claims that the Korean won's fluctuation vis-a-

vis the Japanese yen militates against a finding of no likely future

dumping. The Committee states, first, that the won depreciated against

the yen during the 1993/94 and 1994/95 periods, thereby increasing the

costs of inputs into subject merchandise. The Committee claims that,

despite this increase in costs, the Korean respondents continued to

sell subject merchandise in the United States at unfairly low prices.

The Committee suggests that the won's subsequent appreciation against

the yen (since the last quarter of the 1994/95 period) will allow

respondents to sell in the United States at even lower prices.

The Committee also argues that the Department should not revoke the

antidumping duty order in part because Chun Kee and Manho have failed

to provide any evidence on the record of this proceeding to establish

that there is no likelihood of a resumption of sales at less than

normal value. The Committee claims that, because the Department

conducted verifications of Chun Kee's and Manho's sales responses, both

companies had ample time to submit evidence in support of their

revocation requests. Therefore, according to the Committee, the

Department does not have the authority to revoke the order with respect

to Chun Kee and Manho because of the lack of verification of any

evidence in support of their requests for verification.

Finally, the Committee contends that, although Chun Kee and Manho

received de minimis or zero-percent dumping margins in the 1993/94 and

1994/95 reviews and in the preliminary results of this review, the

Department determined that both companies sold subject merchandise in

the home market at prices below the cost of production. It argues that

this pattern of selling below cost greatly increase the likelihood that

the companies will sell at less than normal value in the future. The

Committee also suggests that the Department must consider the fact that

Chun Kee received de minimis rather than zero-percent margins in the

prior reviews. Hence, claims the Committee, the slightest shift in Chun

Kee's pricing practice could easily result in a resumption in sales at

less than fair value.

Chun Kee and Manho respond that they have both established all of

the requisite regulatory criteria for revocation. They state that the

Department's regulations authorize the

[[Page 17173]]

Department to revoke an antidumping order when: (1) The producer has

sold the merchandise at not less than normal value for three

consecutive years; (2) it is not likely that the producer will in the

future sell the merchandise at less than normal value; and (3) the

producer agrees in writing to immediate reinstatement of the order if

the Department later finds that the revoked producer is selling the

merchandise at less than normal value (citing 19 CFR 353.25(a)(2)).

Respondents claim that, since the current version of 19 CFR 353.25 was

adopted in 1989, the Department has granted revocation in virtually

every case where a respondent has established three consecutive years

of no dumping and furnished the required certifications.

Respondents cite Tatung Company v. United States, 18 CIT 1137

(December 14, 1994) (Tatung Company), where the court found that past

behavior constitutes substantial evidence of expected future behavior.

Respondents state that, during the history of this proceeding, the only

dumping margin found for any responding company was a 1.51 percent

margin for Manho during the 1992 less-than-fair-value (LTFV)

investigation. They further note that, under the post-URAA law, a 1.51

percent margin is de minimis; therefore, they contend, under the

current law neither Chun Kee nor Manho have ever sold the subject

merchandise at less than normal value.

With respect to the Committee's arguments concerning competitive

U.S. market conditions, respondents state that they have been selling

steel wire rope in the United States without dumping for at least 18

years and that the Korean market is equally if not more competitive

than the U.S. market and becoming more competitive with a depreciating

currency (citing Fresh Cut Flowers from Mexico; Final Results of

Antidumping Duty Administrative Review and Revocation in Part of

Antidumping Duty Order, 61 FR 63822, 63825 (December 2, 1996) (Fresh

Cut Flowers), where the Department granted revocation to a respondent

while agreeing that the devaluation of the home market currency makes

dumping less likely).

Respondents dispute the Committee's argument that an increase in

imports into the United States from countries other than the Republic

of Korea will cause Chun Kee and Manho to sell subject merchandise at

unfair prices in the United States in the future. Respondents note that

Korean imports have decreased relative to total imports since the 1992

LTFV investigation, during which time they have not sold at less than

normal value.

Respondents also state that they have not artificially decreased or

manipulated product lines to ensure revocation. Respondents distinguish

this case from Brass Sheet and Strip where the respondent had an

incentive to continue dumping, intentionally avoided sales of lower-

priced subject merchandise, and purposefully sold small and controlled

quantities for a three-year period.

Respondents claim that there is no evidence on the record to

support the assertion that either company depends on sales to the

United States for financial viability or that this alleged financial

dependence will cause Chun Kee and Manho to sell at prices below the

normal value in the future. In this regard, respondents claim that the

Committee misrepresents the facts by claiming that Chun Kee and Manho

do not sell subject merchandise to third countries. Respondents claim

that they both sold significant volumes of subject merchandise to third

countries and proved so at verification.

Respondents characterize as illogical the Committee's argument that

the Department should deny revocation now that the Korean won is

depreciating relative to the U.S. dollar. Respondents state that a

depreciating Korean won in facts makes selling at below normal value

less likely to occur and note that Chun Kee and Manho have a proven

record of selling subject merchandise above normal value when the

Korean won appreciates. They claim that the Department has granted

revocation in past cases when respondents have shown a proven track

record that it had not sold its merchandise at less than fair value

when the home market currency appreciated during past administrative

reviews (citing Tapered Roller Bearings and Parts Thereof, Finished and

Unfinished, From Japan and Tapered Roller Bearings, Four Inches or Less

in Outside Diameter, and Components Thereof, From Japan; Final Results

of Antidumping Duty Administrative Reviews and Revocation in Part of an

Antidumping Finding, 61 FR 57650, (November 7, 1996) (TRBs), and Color

Television Receivers, Except for Video Monitors, From Taiwan; Final

Results, 55 FR 47093 (November 9, 1990) (Color TVs)). Respondents also

note that, in Color TVs, as in this case, respondents were never found

to have sold at less than normal value either before or since the order

was issued, and respondents sold substantial and increasing quantities

of subject merchandise throughout the three review periods.

Respondents also deny the Committee's claim that Chun Kee and Manho

imported wire rod from Japan in the period of review and argue that,

even if they did import from Japan, the cost for the input would be

reflected in the home market and in the United States price.

With respect to the Committee's argument that respondents did not

demonstrate ``no likelihood'' to resume selling at prices below the

normal value at verification, respondents claim that the Department's

verifications of Chun Kee and Manho were consistent with its

regulations and claim that the Committee never asked prior to

verification that the Department consider the issue of likelihood of

resumption of sales at less than fair value at verification.

Respondents cite 19 CFR 353.36(c) and claim that at verification the

Department's only obligation is to have access to all files, records

and personnel which the Secretary considers relevant to submitted

factual information. They claim that at both verifications the

Department had access to all the information it needed to make a

preliminary finding to partially revoke the order and it had the

responsibility to request any other information it considered relevant.

Finally, respondents state that the Department considers a

weighted-average de minimis margin to be equivalent to a zero margin

for all sales regardless of the actual margin on individual sales for

purposes of eligibility for revocation (citing Color TVs). Therefore,

argue respondents, the Committee's statement that Chun Kee's margin was

0.1 percent rather than zero is irrelevant.

Department's Position: We disagree with the Committee and are

revoking in part the antidumping duty order with respect to Chun Kee

and Manho. Both respondents have obtained de minimis margins for the

requisite consecutive review periods and have provided us with the

necessary certifications in accordance with our regulations. In

addition, based on the evidence on the record, we have concluded that

it is not likely that in the future that these respondents will sell

the subject mechandise at less than normal value. As noted above, in

the past two reviews and for the final results of review, Chun Kee and

Manho have had de minimis weighted-average margins. As the CIT affirmed

in Tatung Company, past behavior constitutes substantial evidence of

expected future behavior.

The Committee claims that recent market trends place pressure on

Chun Kee and Manho to reduce their prices in

[[Page 17174]]

the United States and state this is partially because Chun Kee and

Manho export only to the United States. There is no evidence to suggest

that competition in the United States steel wire rope industry is any

more fierce than in past years, during which Chun Kee increased its

sales of steel wire in the United States and Manho's sales volume has

fluctuated, both without selling at prices below normal value. Further,

both Chun Kee and Manho sell steel wire rope in countries other than

the Republic of Korea and the United States and are not solely

dependent on the United States for financial viability as suggested by

the Committee. See Home Market and Export Price Verification of Chun

Kee Steel & Wire Rope Company at 3 and HM and Export Price Verification

of Manho Rope & Wire, Ltd. at 3.

While the Committee argues that the volatility of the Korean won

and a possible future appreciation of the Korean won make it difficult

to conclude that it is not likely that these respondents will resume

sales at less than normal value, neither Chun Kee nor Manho have had

above de minimis weighted-average dumping margins over the past three

reviews during which the Korean won has appreciated against the U.S.

dollar. During a period of a depreciating Korean won, as the Committee

acknowledged has occurred since the end of this review period, there is

even less pressure to engage in less-than-normal-value pricing. Given

that the past appreciation of the Korean won did not cause Chun Kee and

Manho to sell steel wire in the United States at prices below normal

value, we have no basis to conclude that a possible currency

appreciation in the future will cause them to change their pricing

practices. See Fresh Cut Flowers at 63825. Further, while in Brass

Sheet and Strip we acknowledged that the continued strengthening of the

home market currency provides an impetus to resume sales at less than

normal value in the absence of an antidumping duty order, this was only

one of many reasons to deny revocation of the antidumping duty order.

We stated in Brass Sheet and Strip that the exchange rate trend was one

element in determining the likelihood of resumption of sales at less

than normal value. Further, in Brass Sheet and Strip, we were concerned

with a continuing strengthening of the home market currency whereas in

this case the Korean won is currently depreciating relative to the U.S.

dollar. See Brass Sheet and Strip, 61 FR at 49731. The present case is

also distinct from Titanium Sponge, where at the time of the decision

not to revoke the antidumping duty order the Japanese yen was

appreciating against the U.S. dollar.

Regarding the fluctuations of the Korean won against the Japanese

yen as an influence on respondents' costs, the Committee did not point

to any evidence on the record in this review that Chun Kee or Manho

purchased any inputs of steel wire rope from Japan. Further, the

Committee acknowledges that, since the 1994/95 period, the Korean won

has appreciated against the Japanese yen, thereby making purchases of

Japanese inputs less expensive. For the three consecutive review

periods and during the volatility of the Korean won against the

Japanese yen, we have consistently calculated a zero-percent weighted-

average dumping margin for Manho and a 0.01 percent weighted-average

dumping margin for Chun Kee. Finally, any changes in respondents' input

costs due to currency fluctuations would be reflected in both the home

market and U.S. prices.

Moreover, the Committee provides no support for its claim that,

because we have found Chun Kee and Manho to have sold steel wire rope

at prices below cost in the home market, they are likely to sell at

prices at less than fair value in the future. All of the evidence in

this case, as mentioned above, leads us to believe that it is not

likely that Chun Kee and Manho will sell at prices below the normal

value in the future.

Finally, the Committee is incorrect in citing Titanium Sponge to

argue that the Department must consider the fact that Chun Kee's

weighted-average antidumping duty margin has been de minimis rather

than zero in denying revocation to Chun Kee. Titanium Sponge does not

imply that a de minimis margin should be treated as anything other than

equivalent to a zero margin for the purposes of eligibility for

revocation. In Titanium Sponge, 53 FR at 26100, we stated only that the

contributing factors to our decision not to revoke the antidumping duty

order include ``the large surplus of titanium sponge inventories, the

decline in purchasing power of the dollar against the yen, and the

minimal pricing differential currently existing between the U.S. and

domestic market.'' In fact, in Color TVs, 55 FR at 47097, the

Department stated that it ``considers a de minimis margin to be

equivalent to a zero margin, and a weighted-average de minimis margin

to be equivalent to zero for all sales, regardless of the actual margin

on individual sales, for purposes of eligibility of revocation.''

Chun Kee and Manho have each met the requirement established by our

regulations of de minimis margins for the requisite consecutive number

of years. In addition, each has agreed to immediate reinstatement in

the order if we conclude that subsequent to the partial revocation of

the order, the particular respondent sold the merchandise at less than

normal value. Finally, based on the evidence on the record of this

review and conclusions drawn from our experience with these respondents

in prior reviews, we conclude that it is not likely that in the future

these respondents will sell the subject merchandise at less than normal

value. Therefore, we are revoking the order with respect to Chun Kee

and Manho.

Comment 2: The Committee claims that, because the Department

performed the arm's-length test on a customer-specific basis by

comparing the average net price to affiliated parties against prices to

unaffiliated parties, the Department used sales to affiliated parties

which were found not to be arm's-length transactions in its calculation

of normal value. The Committee asserts that the Department must examine

home market sales to affiliated parties on a transaction-by-transaction

basis and exclude those particular sales which are found not to be

arm's-length transactions. The Committee maintains that the inclusion

of such sales is violative of the controlling regulation, precedent and

the proposed regulations (citing 19 CFR 353.45(a), 19 CFR 351.403

(proposed regulation), and Welded Carbon Steel Pipe and Tube Products

From Turkey: Final Results of Antidumping Duty Administrative Review,

55 FR 42230 (October 18, 1990) (Pipe and Tube)). The Committee asserts,

therefore, that the Department must recalculate NV excluding such sales

by Chun Kee. The Committee notes an apparent discrepancy between the

preliminary results analysis memorandum and the notice of Preliminary

Results, the latter of which suggests such sales were excluded.

Respondents assert that sales to affiliated parties are not

automatically removed from consideration as part of the home market

sales database and are included in the margin calculation as long as

they are deemed to be arm's-length transactions (citing Connors Steel

Company v. United States, 527 F. Supp. 350, 354 (CIT 1981), and Usinor

Sacilor et al. v. United States, 872 F. Supp. 1000, 1002 (CIT 1994)

(Usinor)). Respondents state that the Department's 99.5% arm's-length

test, which compares the customer-specific average

[[Page 17175]]

prices at which the respondent sells to affiliated and unaffiliated

customers, is well established and note that Chun Kee's sales passed

the test (citing Tapered Roller Bearings and Parts Thereof, Finished

and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or

Less in Outside Diameter, and Components Thereof, From Japan;

Preliminary Results of Antidumping Duty Administrative Reviews and

Partial Termination of Administrative Reviews, 61 FR 57391, 57393

(November 6, 1996) (TRBs Prelim.)). Respondents maintain that the

Department uses customer-specific averages rather than individual sales

to ensure that the comparison is not distorted by normal price

fluctuations. Respondents note that this practice has been upheld by

the Court of International Trade (CIT).

Department's Position: We disagree with the Committee that we must

perform the arm's-length test on a transaction-by-transaction basis.

Performing the test in such a manner would conflict with our long-

standing practice of using customer-specific weighted-average prices

(see, e.g., Antifriction Bearings (Other Than Tapered Roller Bearings)

and Parts Thereof From France, et al.; Final Results of Antidumping

Duty Administrative Reviews, Partial Termination of Administrative

Reviews, and Revocation in Part of Antidumping Duty Orders, 60 FR

10900, 10946 and 10947 (February 28, 1995); Industrial Phosphoric Acid

From Belgium; Final Results of Antidumping Duty Administrative Review,

61 FR 51424, 51425 (October 2, 1996); TRBs Prelim., 61 FR at 57393-94).

The Committee's reliance on Pipe and Tube to support its position that

average prices cannot be used in an arm's-length test is misplaced. In

Pipe and Tube, 55 FR at 42231, we merely confirmed our practice of

disregarding sales not made at arm's length; we did not expound on the

methodology for determining the arm's-length nature of such sales.

In addition, the CIT has implicitly approved of our use of

weighted-average prices to conduct the test. In Usinor, we used the

same arm's-length test as in the instant review. In finding the

Department's application of the arm's-length test reasonable on other

grounds, the CIT implicitly approved of the Department's practice of

weight-averaging prices (Usinor, 872 F. Supp. at 1002-04). We believe

that our application of the test is reasonable and have maintained our

approach for the final results.

Comment 3: The Committee argues that the Department's use of a 1.51

percent dumping margin as adverse facts available for Boo Kook, Dong-Il

and Yeonsin undercuts the cooperation-inducing purpose of the facts-

available provision of the statute. The Committee contends that,

instead of using the highest rate available from any prior segment of

the proceeding, the Department should apply a dumping rate based on the

rate calculated in the petition of the original investigation (148.94

percent) or the calculations set forth in the Committee's submissions

to the Department in the 1994/95 administrative review (23.5 percent).

The Committee states that, pursuant to section 776(a) of the Act,

if the Department finds that an interested party has not cooperated

with the Department's request for information, the Department may use

an inference that is adverse to the interests of that party in

selecting from facts available; further, this adverse inference may be

based on information derived from the petition or any other information

placed on the record. The Committee also contends that the SAA states

that the Department does not need to prove that the facts available

that it selects constitute the best alternative, but that the facts

available need only to be information or inferences which are

reasonable to use under the circumstances (citing H.R. Doc. 316, Vol.

1, 103d Cong., 2d sess. 870 (1994)).

The Committee states that the SAA provides that the Department may

employ an adverse inference about missing information to ensure that

the non-responding party does not obtain a more favorable result by

failing to cooperate that if it had cooperated fully. It argues that it

is apparent that continuing use of the 1.51 percent rate has failed to

achieve the cooperation-inducing purpose of the facts-available rule.

The Committee argues that Boo Kook, Dong-Il and Yeonsin have expressly

failed to cooperate with the Department's request for information and

have never submitted a response to the Department's questionnaire in

the three reviews of this antidumping duty order. It further claims

that the 1.51 facts-available rate that the three companies have

received has remained low enough to encourage them not to respond to

the Department's requests for information. The Committee also argues

that the Department's rigid application of the facts-available

methodology employed in prior reviews provides a safe harbor for the

companies that did not respond in this proceeding and allows the

respondent to control the proceeding. The Committee cites Olympic

Adhesives, Inc. v. United States, 899 F.2d 1565, 1571-72 (Fed. Cir.

1990) (Olympic Adhesives), in arguing that parties should not be

allowed to control the magnitude of the dumping margin by selectively

providing the Department with information.

Department's Position: We disagree with the Committee that reliance

on the petition rate from the original investigation or petitioner-

supplied data from the 1994/95 review as a basis for facts available

would be appropriate in the context of this review.

The Department has broad discretion in determining what constitutes

facts available in a given situation. Krupp Stahl AG v. United States,

822 F. Supp 789, 792 (CIT 1993); see also Allied-Signal Aerospace Co.

v. United States, 996 F.2d. 1185, 1191 (Fed. Cir. 1993) (``[b]ecause

Congress has `explicitly left a gap for the agency to fill' in

determining what constitutes the [best information available], the

ITA's construction of the statute must be accorded considerable

deference,'' citing Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 833-44 (1984)).

In any given review, a respondent will have knowledge of the

antidumping rates from the investigation and past reviews but not of

the rates that will be established in the ongoing review. Because under

our facts-available policy we consider the highest rate from the

current review as one possible source of facts available, potentially

uncooperative respondents will generally be less able to predict their

facts-available rate as the number of participants in the ongoing

review increases. Thus, respondents that do not participate and receive

their own known rates risk receiving a potentially much higher unknown

rate. Accordingly, this uncertainty in the facts-available rate which

may be selected ordinarily satisfies the cooperation-inducing function

of the facts-available provision.

In addition, respondents have an incentive to respond to our

request for information because of the possibility of eventual

revocation of the antidumping duty order with respect to the company. A

respondent with a rate above de minimis that does not participate in

the administrative review is not eligible for revocation. Hence, a

further reason the rate assigned to uncooperative respondents in

reviews in accordance with our practice may be considered adverse

because it results in respondents with a rate above de minimis

remaining subject to the order without eligibility for revocation.

We recognize that there are instances in which the uncooperative

rate resulting from our standard

[[Page 17176]]

methodology may not induce respondents to cooperate in subsequent

segments of the proceeding. We recognize that this case may be an

instance where our methodology may no longer be inducing cooperation;

however, we are unable to make such a determination based on the facts

of this record.

The few cases in which we have not relied on our standard approach

have involved an extremely limited number of participants and,

therefore, a consequently small number of rates available for use as a

basis for the uncooperative rate.1 For instance, in Sodium

Thiosulfate from the People's Republic of China: Final Results of

Antidumping Duty Administrative Review, 59 FR 12934 (March 8, 1993)

(Sodium Thiosulfate), we used information supplied by the petitioner to

establish the uncooperative rate for the only respondent that had

shipments of subject merchandise during the POR. Similarly, in Silicon

Metal From Argentina: Final Results of Antidumping Duty Administrative

Review, 58 FR 65336, 65337 (December 14, 1993) (Silicon Metal), we

resorted to petitioner-supplied data where we had a calculated rate for

only one firm: ``[i]n this instance, we have only Andina's rate from

the LTFV investigation * * *. Because Andina's rate is also the `all

other' rate, Silarsa would be assured a rate no higher than Andina's,

the only respondent who cooperated fully with the Department in this

administrative review. The use of the uncooperative BIA methodology, in

this instance, restricts the field of potential BIA rates to the rate

established for one firm.'' Silicon Metal, 58 FR at 65336 and 65337

(emphasis added).

---------------------------------------------------------------------------

\1\ As noted, although we have explained our practice in terms

of a two-tiered methodology in pre-URAA reviews, the cases where we

deviated from this approach, as cited by the Committee, involved

first-tier, uncooperative respondents, and our practice regarding

the derivation of the dumping margin assigned to uncooperative

companies has not changed.

---------------------------------------------------------------------------

Our determination in Certain Malleable Cast Iron Pipe Fittings from

Brazil; Final Results of Antidumping Duty Administrative Review, 60 FR

41876 (August 14, 1995) (Pipe Fittings), is a further example of a

situation in which the circumstances of the case clearly demonstrated

that the uncooperative rate was not sufficient to induce the respondent

to cooperate. In Pipe Fittings, we applied a petition-based rate to a

non-responsive company that was the only company to have ever been

investigated or reviewed: ``[we] have only calculated one margin, which

was in the LTFV investigation. Due to the unusual situation, we have

determined to use as BIA the simple average of the rates from the

petition. * * * In not responding to our requests for information, Tupy

could be relying upon our normal BIA practice to lock in a rate that is

capped at its LTFV rate'' (see Pipe Fittings, 61 FR at 41877-78).

The concern in such cases with respect to the uncooperative-rate

methodology is that the lack of past rates, as well as the small number

of participants in the current review, could allow a respondent in such

a review to manipulate the proceeding by choosing not to comply with

our requests for information. In such cases the cooperation-inducing

function of the facts-available provision of the Act may not be

achieved by use of the uncooperative-rate methodology, in which case

the Department will resort to alternatives sources in determining the

appropriate rate for uncooperative respondents. That is not to say that

we will deviate from our standard uncooperative-rate methodology only

when those case facts are present.

These cases establish that we will consider, on a case-by-case

basis as appropriate, petitioner-supplied data in situations involving

a number of calculated rates insufficient to induce cooperation by

respondents in the proceeding. Unlike the instant case, in these cases,

we did not have rates for more than one company and therefore

determined that the use of a BIA rate higher than the highest rate in

the history of the case was appropriate to encourage future

cooperation. However, as expressed above, this case may be an instance

where deviation from our standard uncooperative-rate methodology might

be appropriate with the proper facts of record.

While the Committee cites Olympic Adhesives in support of its

position that a party should not be allowed to control the proceeding

by using evasive tactics, this case essentially addresses whether a

company should be assigned facts available (formerly the best

information available) and not the magnitude of the facts-available

rate as is the issue in this case. In the instant case we are assigning

facts available to the three above-mentioned companies, whereas in

Olympic Adhesives the court found that we should not apply facts

available to the participating company in the relevant case.

Because we have calculated rates from three companies in the LTFV

final determination, eight companies in the 1992/94 review, six

companies in the 1994/95 review, and six companies in this review, the

concern over potential manipulation of antidumping rates cited in

Sodium Thiosulfate, Silicon Metal, and Pipe Fittings is less likely to

be present in this review. As mentioned above, based on the facts of

this record, we feel that the facts-available rate in this case

satisfies the cooperation-inducing function of the facts-available

provision and does not allow the three non-responding companies in this

review to control the proceeding. However, the facts-available rate

available to us in this review may no longer be having the desired

effect of inducing cooperation by potential respondents. Therefore, in

the event a subsequent review is conducted, we will collect information

bearing on this issue to permit us to make a determination on the

cooperation-inducing effect of our rate and, if necessary, adjust our

rate accordingly.

Final Results of Review

We determine the following percentage weighted-average margins

exist for the period March 1, 1995, through February 29, 1996:

------------------------------------------------------------------------

Margin

Manufacturer/exporter (percent)

------------------------------------------------------------------------

Boo Kook Corporation....................................... 1.51

Chun Kee Steel & Wire Rope Co., Ltd........................ 0.01

Chung Woo Rope Co., Ltd.................................... 0.24

Dong-Il Steel Manufacturing Co., Ltd....................... 1.51

Hanboo Wire Rope, Inc...................................... 1.51

Kumho Wire Rope Mfg. Co., Ltd.............................. 0.01

Manho Rope & Wire, Ltd..................................... 0.00

Myung Jin Co............................................... \1\ 1.51

Seo Jin Rope............................................... 1.51

Ssang Yong Steel Wire Co., Ltd............................. 0.01

Sung Jin................................................... 0.03

Yeonsin Metal.............................................. 1.51

------------------------------------------------------------------------

\1\ No shipments subject to this review. Rate is from the last relevant

segment of the proceeding in which the firm had shipments/sales.

The Department shall determine, and the Customs Service shall

assess, antidumping duties on all appropriate entries. Individual

differences between export price and normal value may vary from the

percentages stated above. The Department will issue appraisement

instructions on each exporter directly to the Customs Service.

Furthermore, the following 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 these

final results of this administrative review, as provided by section

751(a)(1) of the Act. (1) For Chun Kee and Manho, the revocation of the

antidumping duty order applies to all entries of subject merchandise

[[Page 17177]]

entered, or withdrawn from warehouse, for consumption on or after March

1, 1996. The Department will order the suspension of liquidation ended

for all such entries and will instruct the Customs Service to release

any cash deposits or bonds. The Department will further instruct the

Customs Service to refund with interest any cash deposits on post-March

1, 1995 entries. (2) The cash deposit rates for the other reviewed

companies will be those rates established above (except that, if the

rate for a firm is de minimis, i.e., less than 0.5 percent, a cash

deposit of zero will be required for that firm). (3) For previously

reviewed or investigated companies not listed above, the cash deposit

rate will continue to be the company-specific rate published for the

most recent period. (4) If the exporter is not a firm covered in this

review, a prior review, or the original 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. (5) If

neither the exporter nor the manufacturer is a firm covered in this or

any previous review or the original investigation, the cash deposit

rate will be 1.51 percent, the ``All Others'' rate established in the

LTFV Final Determination (58 FR 11029).

These deposit requirements shall remain in effect until publication

of the final results of the next administrative review.

This notice also serves as a final reminder to importers of their

responsibility under 19 CFR 353.26 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.

This notice also serves as a reminder to parties subject to

administrative protective orders (APOs) of their responsibility

concerning the disposition of proprietary information disclosed under

APO in accordance with 19 CFR 353.34(d)(1). Timely written notification

of the 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.

This administrative review and notice are in accordance with

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

CFR 353.22 and 19 CFR 353.25.

Dated: April 2, 1997.

Robert S. LaRussa,

Acting Assistant Secretary, for Import Administration.

[FR Doc. 97-9114 Filed 4-8-97; 8:45 am]

BILLING CODE 3510-DS-P