Elemental Sulphur From Canada; Preliminary Results of Antidumping Duty Administrative Review

DEPARTMENT OF COMMERCE

International Trade Administration

[A-122-047]

Elemental Sulphur From Canada; Preliminary Results of Antidumping

Duty Administrative Review

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice of Preliminary Results and Partial Rescission of

Antidumping Duty Administrative Review of Elemental Sulphur from

Canada.

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SUMMARY: This administrative review covers Husky Oil, Ltd. (``Husky'')

and Petrosul International (``Petrosul''). The period of review

(``POR'') is December 1, 1997, through November 30, 1998.

For the reasons provided in the ``Facts Available'' section of this

notice, we have preliminarily determined Husky's antidumping rate based

on total adverse facts available, and have applied the highest rate

calculated for Husky in prior reviews. If these preliminary results are

adopted in our final results of administrative review, we will instruct

the U.S. Customs Service to assess antidumping duties based on this

margin.

On March 10, 1999, Petrosul informed the Department of Commerce

(``the Department'') that it did not have any shipments of subject

merchandise to the United States during the POR. We have confirmed this

with information from the U.S. Customs Service. Therefore, in

accordance with section 351.213(d)(3) of the Department's regulations

and consistent with the Department's practice, we are rescinding our

review for Petrosul. For further information, see the ``Partial

Rescission of Review'' section of this notice, below.

Interested parties are invited to comment on these preliminary

results. Parties who submit arguments in this proceeding are requested

to submit with the argument: (1) a statement of the issue; and (2) a

brief summary of the argument.

EFFECTIVE DATE: September 7, 1999.

FOR FURTHER INFORMATION CONTACT: Brandon Farlander or Rick Johnson,

Import Administration, International Trade Administration, U.S.

Department of Commerce, 14th and Constitution Avenue, NW., Washington,

DC 20230; telephone: (202) 482-0182 or (202) 482-3818, respectively.

Applicable Statute and Regulations

Unless otherwise indicated, all citations to the statute are

references to the provisions effective January 1, 1995, the effective

date of the amendments made to the Tariff Act of 1930 (``the Act'') by

the Uruguay Rounds Agreements Act (``URAA''). In addition, unless

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

to the regulations codified at 19 CFR Part 351 (1998).

Background

On December 8, 1998, the Department published in the Federal

Register a notice of ``Opportunity to Request Administrative Review''

of the antidumping duty order on elemental sulphur from Canada (63 FR

67646). In accordance with 19 CFR 351.213(b)(1), on December 31, 1998,

the petitioner, Freeport-McMoRan Sulphur, Inc. (``Freeport''),

requested an administrative review of the antidumping order covering

the period December 1, 1997, through November 30, 1998, for Husky and

Petrosul. On January 25, 1999, the Department published in the Federal

Register a notice of initiation of administrative review of this order

(64 FR 3682). On February 5, 1999, Husky requested that the Department

rescind the review and revoke, in whole or in part, the above

antidumping order based on changed circumstances. On March 22, 1999,

the Department denied Husky's request for a changed circumstances

review. See Decision Memorandum: Request of Husky Oil, Ltd. to Initiate

A Changed Circumstances Review of the Antidumping Duty Order on

Elemental Sulphur from Canada, March 22, 1999. On April 19, 1999, Husky

submitted a letter to the Department stating that it would not further

respond to the Department's questionnaire (a partial response to the

Department's questionnaire had been submitted on March 16, 1999),

because ``it (could not) justify the time and considerable costs

necessitated by full participation in this review.''

Scope of the Review

Imports covered by this review are shipments of elemental sulphur

from Canada. This merchandise is classifiable under Harmonized Tariff

Schedule (``HTS'') subheadings 2503.10.00, 2503.90.00, and 2802.00.00.

Although the HTS subheadings are provided for convenience and for U.S.

Customs purposes, the written description of the scope of this finding

remains dispositive.

Partial Rescission of Review

As noted above, on March 10, 1999, Petrosul informed the Department

that it had no shipments of subject merchandise to the United States

during the POR. We have confirmed this with information received from

the U.S. Customs Service. Therefore, in accordance with 19 CFR

351.213(d)(3) and consistent with the Department's practice, we are

rescinding our review with respect to Petrosul (see e.g., Certain

Welded Carbon Steel Pipe and Tube from Turkey; Final Results and

Partial Rescission of Antidumping Administrative Review, 63 FR 35190,

35191 (June 29, 1998)).

Facts Available

In accordance with section 776(a)(2)(A) of the Act, we

preliminarily determine that the use of facts available is appropriate

as the basis for Husky's dumping margin. Section 776(a)(2) of the Act

provides that if an interested party: (A) withholds information that

has been requested by the Department; (B) fails to provide such

information in a timely manner or in the form or manner requested,

subject to subsections 782 (c)(1) and (e) of the Act; (C) significantly

impedes a determination under the antidumping statute; or (D) provides

such information but the information cannot be verified, the Department

shall, subject to subsection 782(d) of the Act, use facts otherwise

available in reaching the applicable determination. In this case,

section 776(a)(2)(A) of the Act applies because Husky failed to respond

to sections B, C, and D of the Department's February 16, 1999

questionnaire.

Because Husky failed to respond to significant sections of the

Department's questionnaire (i.e., including submissions relating to

home market sales, U.S. sales, and cost of production information), and

indicated that it would not continue to participate fully in this

administrative review, we preliminarily determine that, in accordance

with sections 776(a) and 782(e) of the Act, the use of total facts

available is appropriate. See, e.g., Certain Grain-Oriented Electrical

Steel from Italy: Final Results of Antidumping Duty Administrative

Review, 62 FR 2655 (January 17, 1997).

Section 776(b) of the Act provides that adverse inferences may be

used with respect to a party that has failed to cooperate by not acting

to the best of its ability to comply with requests for information. See

Statement of Administrative Action (``SAA'') accompanying the URAA,

H.R. Rep. No. 103-316, at 870. Husky's failure to participate in this

review demonstrates that it has failed to act to the best of its

ability and, therefore, an adverse inference is warranted. See, e.g.,

Extruded Rubber Thread from Malaysia; Final Results of Antidumping Duty

[[Page 48588]]

Administrative Review, 63 FR 12752 (March 16, 1998).

Section 776(b) of the Act authorizes the Department to use as

adverse facts available secondary information, that is, information

derived from the petition, the final determination, a previous

administrative review, or any other information placed on the record.

The SAA further provides that ``{i}n employing adverse inferences, one

factor the {Department} will consider is the extent to which a party

may benefit from its own lack of cooperation.'' SAA at 870. It is the

Department's normal practice, in situations involving non-cooperating

respondents such as Husky, to select as adverse facts available the

highest margin from the current or any prior segment of the same

proceeding. Therefore, as total adverse facts available, we have

applied the rate of 40.38 percent, which was Husky's calculated final

margin in the 1992/93 administrative review. See Final Elemental

Sulphur from Canada; Final Results of Antidumping Duty Administrative

Reviews 62 FR 37970, 37990 (July 15, 1997). The Department previously

applied this rate as a total adverse facts available rate for Mobil Oil

Canada, Ltd. in the 1994/95 administrative review. See Elemental

Sulphur from Canada: Final Results of Antidumping Duty Administrative

Review, 62 FR 37958, 37969 (July 15, 1997).

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

the extent practicable, corroborate secondary information by reviewing

independent sources reasonably at its disposal. The SAA provides that

``corroborate'' means that the Department will satisfy itself that the

secondary information to be used has probative value, that is, that it

is both reliable and relevant. See SAA at 870. The 40.38 percent rate

we selected meets these corroboration criteria.

Regarding the reliability of the selected rate, because there are

no independent sources for calculated dumping margins, unlike other

types of information, such as input costs or selling expenses, the only

source for margins is administrative determinations. 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 that

earlier calculated margin. See, e.g., Elemental Sulphur from Canada:

Preliminary Results of Antidumping Duty Administrative Review, 62 FR

971 (January 7, 1997); Antifriction Bearings (Other Than Tapered Roller

Bearings) and Parts Thereof from France, et al.: Final Results of

Administrative Review, 62 FR 2081, 2088 (January 15, 1997); and Final

Results of Antidumping Duty Administrative Review: Brass Sheet and

Strip from Germany, 64 FR 43342, 43343 (August 10, 1999). Thus, because

we have selected Husky's own calculated margin from a prior

administrative review, we do not need to question its reliability.

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

inappropriate. 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, 6814 (February 22, 1996) (where the

Department disregarded the highest margin for use as adverse facts

available because the margin was based on another company's

uncharacteristic business expense, resulting in an unusually high

margin). In this review, the rate selected stems from Husky itself, and

we are not aware of any circumstances that would render this rate

inappropriate.

Preliminary Results of Review

As a result of our review, we preliminarily determine that the

following margin exists for the period December 1, 1997, through

November 30, 1998:

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

Margin

Manufacturer/Exporter (percent)

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

Husky Oil, Ltd 40.38

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Any interested party may request a hearing within 30 days of

publication of this notice in the Federal Register. Case briefs from

interested parties may be submitted not later than 30 days after the

date of publication of this notice in the Federal Register; rebuttal

briefs may be submitted not later than five days thereafter. Any

hearing, if requested, will be held 2 days after the scheduled date for

submission of rebuttal briefs. Issues raised in the hearing will be

limited to those raised in the case briefs. The Department will publish

the final results of this administrative review, including its analysis

of issues raised in any written comments or at a hearing, not later

than 120 days after the date of publication of this notice.

Assessment Rate

In the event these preliminary results are made final, we intend to

assess antidumping duties on Husky's entries at the same rate as the

dumping margin (i.e., 40.38 percent) since the margin is not a current

calculated rate for the respondent, but a rate based upon total facts

available pursuant to section 776(a) of the Act.

Cash Deposit

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 the

final results of these administrative reviews, as provided by section

751(a)(1) of the Act: (1) the cash deposit rate for Husky will be the

rate established in the final results of this administrative review (no

deposit will be required for a zero or de minimis margin, i.e., a

margin lower than 0.5 percent); (2) for merchandise exported by

manufacturers or exporters not covered in this review but covered in a

previous segment of this proceeding, the cash deposit rate will

continue to be the company-specific rate published for the most recent

segment; (3) if the exporter is not a firm covered in this review, a

prior review, or the original investigation, but the manufacturer is,

the cash deposit rate will be the rate established for the most recent

period for the manufacturer of the merchandise; and (4) the cash

deposit rate for all other manufacturers will be the ``all others''

rate as indicated in the final results of the 1993/94 administrative

review of these orders (see Elemental Sulphur from Canada; Final

Results of Antidumping Duty Administrative Reviews 62 FR 37970, 37990

(July 15, 1997)). These deposit requirements shall remain in effect

until publication of the final results of the next administrative

review.

This notice also serves as a preliminary reminder to importers of

their responsibility under 19 CFR 351.402(f)(2) 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 determination is issued and published in accordance with

sections 751(a)(1) and 777(i)(1) of the Act.

[[Page 48589]]

Dated: August 31, 1999.

Richard W. Moreland,

Acting Assistant Secretary for Import Administration.

[FR Doc. 99-23214 Filed 9-3-99; 8:45 am]

BILLING CODE 3510-DS-P