[Federal Register: March 8, 2007 (Volume 72, Number 45)]
[Notices]
[Page 10492-10498]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr07-51]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-803]
Heavy Forged Hand Tools, Finished or Unfinished, With or Without
Handles, From the People's Republic of China: Preliminary Results and
Partial Rescission of the 2005-2006 Administrative Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is currently
conducting the 2005-2006 administrative review of the antidumping duty
order on heavy forged hand tools, finished or unfinished, with or
without handles, (heavy forged hand tools) from the People's Republic
of China (PRC). We preliminarily determined to apply adverse facts
available (AFA) with respect to four companies which failed to
cooperate to the best of their ability and failed to demonstrate their
eligibility for a separate rate, as follows: (a) Hammers/Sledges and
Bars/Wedges exported by Shandong Machinery Import & Export Company
(SMC); (b) Axes/Adzes, Bars/Wedges, Hammers/Sledges, and Picks/Mattocks
(``all four classes or kinds'') exported by Jafsam Metal Products
(Jafsam); (c) Picks/Mattocks exported by Tianjin Machinery Import and
Export Corporation (TMC); and (d) Picks/Mattocks and Hammers/Sledges
exported by Shandong Huarong Machinery Co. (Huarong).
We are also preliminarily rescinding the following 2005-2006
administrative reviews: (a) Axes/Adzes and Picks/Mattocks, with regard
to SMC; (b) Axes/Adzes, Hammers/Sledges, and Picks/Mattocks, with
regard to Iron Bull Industrial Co., Ltd. (Iron Bull); and (c) all four
classes or kinds with regard to Shanghai Xinike Trading Company
(Xinike).
If these preliminary results are adopted in our final results of
these reviews, we will instruct U.S. Customs and Border Protection
(CBP) to assess antidumping duties on entries of subject merchandise
during the period of review (POR) for which the importer-specific
assessment rates are above de minimis. Interested parties are invited
to comment on these preliminary results. We will issue the final
results no later than 120 days from the date of publication of this
notice.
DATES: Effective Date: March 8, 2007.
FOR FURTHER INFORMATION CONTACT: Mark Flessner or Robert James, AD/CVD
Enforcement Office 7, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
6312 or (202) 482-0649, respectively.
SUPPLEMENTARY INFORMATION:
Background
On February 19, 1991, the Department published in the Federal
Register four antidumping duty orders on heavy forged hand tools from
the PRC. See Antidumping Duty Orders: Heavy Forged Hand Tools, Finished
or Unfinished, With or Without Handles From the People's Republic of
China, 56 FR 6622 (February 19, 1991). Imports covered by these orders
comprise the following classes or kinds of merchandise: (1) Hammers and
sledges with heads over 1.5 kg (3.33 pounds) (Hammers/Sledges); (2)
bars over 18 inches in length, track tools, and wedges (Bars/Wedges);
(3) Picks/Mattocks; and (4) Axes/Adzes. See ``Scope of the Antidumping
Duty Orders'' section below for the complete description of subject
merchandise.
On February 1, 2006, the Department published in the Federal
Register a notice of ``Opportunity to Request an Administrative
Review'' of the antidumping duty order on heavy forged hand tools from
the PRC for the POR covering February 1, 2005, through January 31,
2006. See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity to Request Administrative Review,
71 FR 5239 (February 1, 2006). On February 24, 2006, respondents SMC
and TMC requested administrative reviews. On February 27, 2006,
respondents Shanghai Machinery Import & Export Corp. (Shanghai
Machinery), Huarong, and Shandong Jinma Industrial Group Co., Ltd.
(Jinma), requested administrative reviews. On February 28, 2006,
petitioner Council Tool Company requested administrative reviews of
Huarong, SMC, TMC, Xinike, Iron Bull, and Jafsam. Also on February 28,
2006, another petitioner, Ames True Temper, requested administrative
reviews of Huarong, SMC, TMC, Iron
[[Page 10493]]
Bull, and Truper Herramientas S.A. de C.V. (Truper).
On April 5, 2006, the Department initiated an administrative review
of the antidumping duty orders listed below covering the POR, February
1, 2005, through January 31, 2006, with respect to the listed
companies:
Axes/Adzes A-570-803
Iron Bull Industrial Co., Ltd.
Jafsam Metal Products
Shanghai Machinery Import & Export Corp.
Shanghai Xinike Trading Company
Shandong Huarong Machinery Co., Ltd.
Shandong Jinma Industrial Group Co., Ltd.
Shandong Machinery Import and Export Corporation
Tianjin Machinery Import and Export Corporation
Truper Herramientas S.A. de C.V.
Bars/Wedges A-570-803
Iron Bull Industrial Co., Ltd.
Jafsam Metal Products
Shanghai Machinery Import & Export Corp.
Shanghai Xinike Trading Company
Shandong Huarong Machinery Co., Ltd.
Shandong Jinma Industrial Group Co., Ltd.
Shandong Machinery Import and Export Corporation
Tianjin Machinery Import and Export Corporation
Truper Herramientas S.A. de C.V.
Hammers/Sledges A-570-803
Iron Bull Industrial Co., Ltd.
Jafsam Metal Products
Shanghai Machinery Import & Export Corp.
Shanghai Xinike Trading Company
Shandong Huarong Machinery Co., Ltd.
Shandong Jinma Industrial Group Co., Ltd.
Shandong Machinery Import and Export Corporation
Tianjin Machinery Import and Export Corporation
Picks/Mattocks A-570-803
Iron Bull Industrial Co., Ltd.
Jafsam Metal Products
Shanghai Machinery Import & Export Corp.
Shanghai Xinike Trading Company
Shandong Huarong Machinery Co., Ltd.
Shandong Jinma Industrial Group Co., Ltd.
Shandong Machinery Import and Export Corporation
See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Deferral of Administrative Reviews, 71 FR
17077 (April 5, 2006) (Initiation Notice).
Partial Rescission of Review
During the period specified in the Department's regulations, we
received multiple withdrawals of requests for review by petitioners and
respondents. See Memorandum from Mark Flessner to the Record entitled
``Administrative Review (02/01/2005-01/31/2006) of Heavy Forged Hand
Tools, Finished or Unfinished, With or Without Handles, from the
People's Republic of China: Adverse Facts Available and
Corroboration,'' (AFA and Corroboration Memo), dated February 28, 2007.
On September 11, 2006, we published a notice rescinding the
administrative review, in accordance with 19 CFR 351.213(d)(1), with
respect to Jinma (all four classes or kinds); Shanghai Machinery (all
four classes or kinds); Truper (all four classes or kinds); TMC (Axes/
Adzes, Hammers/Sledges, and Bars/Wedges); Huarong (Axes/Adzes and Bars/
Wedges); and Iron Bull (Bars/Wedges). See Administrative Review (02/01/
2005-01/31/2006) of Heavy Forged Hand Tools, Finished or Unfinished,
With or Without Handles, from the People's Republic of China: Notice of
Rescission of Antidumping Duty Administrative Reviews, 71 FR 53403
(September 11, 2006) (Rescission Notice).
Preliminary Partial Rescission of 2005-2006 Administrative Review
We are preliminarily rescinding the review with respect to SMC for
Axes/Adzes and Picks/Mattocks. SMC reported that it made no shipments
of subject Axes/Adzes or Picks/Mattocks during the POR and the
Department was able to review CBP data which support the claim that SMC
did not export Axes/Adzes and/or Picks/Mattocks during the POR.
Furthermore, no party has placed evidence on the record demonstrating
that SMC exported the merchandise identified above during the POR.
Therefore, in accordance with 19 CFR 351.213(d)(3) and consistent with
the Department's practice, we are preliminarily rescinding the
administrative reviews on Axes/Adzes and Picks/Mattocks with respect to
SMC.
In addition, we are preliminarily rescinding the review with
respect to Iron Bull for Axes/Adzes, Hammers/Sledges, and Picks/
Mattocks for the same reason described above.
The questionnaires sent to Xinike were returned to the Department
as undeliverable. Given that petitioners had requested this review, we
requested that they provide an alternate address for this company, but
they were unable to do so. See Memorandum to the File from Mark
Flessner entitled, ``Administrative Review (02/01/2005-01/31/2006) of
Heavy Forged Hand Tools, Finished or Unfinished, With or Without
Handles, from the People's Republic of China: Attempts to Contact Party
Shanghai Xinike Trading Company,'' dated May 22, 2006. Because the
Department was unable to locate Xinike, we are also preliminarily
rescinding the administrative review with respect to this company in
all four classes or kinds.
Scope of Orders
The products covered by these orders are heavy forged hand tools
from the PRC, comprising the following classes or kinds of merchandise:
(1) Hammers and sledges with heads over 1.5 kg (3.33 pounds); (2) bars
over 18 inches in length, track tools and wedges; (3) picks and
mattocks; and (4) axes, adzes and similar hewing tools. Heavy forged
hand tools include heads for drilling hammers, sledges, axes, mauls,
picks and mattocks, which may or may not be painted, which may or may
not be finished, or which may or may not be imported with handles;
assorted bar products and track tools including wrecking bars, digging
bars and tampers; and steel wood splitting wedges. Heavy forged hand
tools are manufactured through a hot forge operation in which steel is
sheared to required length, heated to forging temperature, and formed
to final shape on forging equipment using dies specific to the desired
product shape and size. Depending on the product, finishing operations
may include shot blasting, grinding, polishing and painting, and the
insertion of handles for handled products. Heavy forged hand tools are
currently provided for under the following Harmonized Tariff System of
the United States (HTSUS) subheadings: 8205.20.60, 8205.59.30,
8201.30.00 and 8201.40.60. Specifically excluded from these orders are
hammers and sledges with heads 1.5 kg. (3.33 pounds) in weight and
under, hoes and rakes, and bars 18 inches in length and under. The
HTSUS subheadings are provided for convenience and Customs purposes.
The written description remains dispositive.
The Department has issued eight conclusive scope rulings regarding
the merchandise covered by these orders: (1) On August 16, 1993, the
Department found the ``Max Multi-Purpose Axe,'' imported by the Forrest
Tool Company, to be within the scope of the Axes/Adzes order; (2) on
March 8, 2001, the Department found ``18-inch'' and ``24-inch'' pry
bars, produced without dies, imported by Olympia Industrial, Inc.
[[Page 10494]]
and SMC Pacific Tools, Inc., to be within the scope of the Bars/Wedges
order; (3) on March 8, 2001, the Department found the ``Pulaski'' tool,
produced without dies by TMC, to be within the scope of the Axes/Adzes
order; (4) on March 8, 2001, the Department found the ``skinning axe,''
imported by Import Traders, Inc., to be within the scope of the Axes/
Adzes order; (5) on December 9, 2004, the Department found the
``MUTT,'' imported by Olympia Industrial, Inc., under HTSUS
8205.59.5510, to be within the scope of the Axes/Adzes order; (6) on
May 23, 2005, the Department found 8-inch by 8-inch and 10-inch by 10-
inch cast tampers, imported by Olympia Industrial, Inc. to be outside
the scope of the orders; (7) on September 22, 2005, following remand,
the U.S. Court of International Trade affirmed the Department's
determination that cast picks are outside the scope of the order; and
(8) on October 14, 2005, the Department found the Mean Green Splitting
Machine, imported by Avalanche Industries, under HTSUS 8201.40.60, to
be within the scope of the Bars/Wedges order.
TMC, Jafsam, and Huarong
We issued our request for quantity and value data (Q&V), and
sections A, C, and D antidumping questionnaire \1\ to all respondents
for which an administrative review had been requested. Although the
Department confirmed delivery of the questionnaires and extended to
each company another opportunity to respond, Jafsam did not submit a
response. See Letter from Robert James, Program Manager, entitled
``Heavy Forged Hand Tools, Finished or Unfinished, With or Without
Handles, from the People's Republic of China: 02/01/2005-01/31/2006
Administrative Review,'' dated May 23, 2006.
---------------------------------------------------------------------------
\1\ Section A of the questionnaire requests general information
concerning a company's corporate structure and business practices,
the merchandise under review that it sells, and the manner in which
it sells that merchandise in all of its markets. Section C requests
a complete listing of U.S. sales. Section D requests information on
the cost of production of the foreign like product and the
constructed value of the merchandise under review.
---------------------------------------------------------------------------
As noted above, the administrative review with regard to TMC was
rescinded for Axes/Adzes, Hammers/Sledges, and Bars/Wedges, leaving TMC
subject to review for Picks/Mattocks. Nevertheless, TMC failed to
submit a questionnaire response with respect to its exports of Picks/
Mattocks. See Rescission Notice. Likewise, the administrative review
with regard to Huarong was rescinded only for Axes/Adzes and Bars/
Wedges, leaving Huarong subject to review for Hammers/Sledges and
Picks/Mattocks. However, Huarong failed to submit a response with
respect to the two remaining classes or kinds of merchandise. See
Rescission Notice.
SMC
With respect to SMC, from April 2006 through January 2007, the
Department issued its initial and supplemental questionnaires.
Responses were received over the course of this period. In addition,
parties were invited to submit comments on surrogate country selection
and factors of production information. Parties submitted information
with respect to these issues as well.
Non-Market Economy Country
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (NME) country. Pursuant to
section 771(18)(C)(i) of the Act, any determination that a foreign
country is a NME country shall remain in effect until revoked by the
administering authority. See, e.g., Heavy Forged Hand Tools, Finished
or Unfinished, With or Without Handles, From the People's Republic of
China: Final Results of Antidumping Duty Administrative Reviews and
Final Rescission and Partial Rescission of Antidumping Duty
Administrative Reviews, 71 FR 54269 (September 14, 2006) (Final Results
of 14th Review). None of the parties to this proceeding has contested
such treatment.
Separate Rates
As discussed below, SMC (with respect to Hammers/Sledges and Bars/
Wedges) failed to adequately respond to the Department's requests for
information. TMC (with respect to the class or kind of merchandise
Picks/Mattocks), Huarong (with respect to Hammers/Sledges and Picks/
Mattocks), and Jafsam (with respect to all four classes or kinds)
failed to respond to the Department's requests for information. See AFA
and Corroboration Memo; see also Facts Available section below.
To establish whether a company operating in a NME is sufficiently
independent to be entitled to a separate rate, the Department analyzes
each exporting entity under the test established in the Final
Determination of Sales at Less Than Fair Value: Sparklers from the
People's Republic of China, 56 FR 20588 (May 6, 1991), as amplified by
the Final Determination of Sales at Less Than Fair Value: Silicon
Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994).
Under the separate-rates criteria, the Department assigns separate
rates in NME cases only if the respondent can demonstrate the absence
of both de jure and de facto governmental control over export
activities.
In the Initiation Notice, the Department stated, ``If one of the
above-named companies does not qualify for a separate rate, all other
exporters of Heavy Forged Hand Tools from the People's Republic of
China who have not qualified for a separate rate are deemed to be
covered by this review as part of the single PRC entity of which the
named exporters are a part.'' See Initiation Notice, n.6.
By failing to adequately respond to the Department's requests for
information, SMC, TMC, Huarong, and Jafsam (pertaining to the classes
or kinds identified above) have not demonstrated they are free of
government control, are therefore not eligible to receive a separate
rate, and are accordingly being treated as part of the PRC-wide entity.
See AFA and Corroboration Memo.
The PRC-wide entity including SMC, TMC, Huarong, and Jafsam
(pertaining to the classes or kinds identified above) failed to
adequately respond to the Department's requests for information.
Because the PRC-wide entity did not cooperate to the best of its
ability in the proceeding, the Department finds it appropriate,
pursuant to sections 776(a)(2) and 776(b) of the Act, to use AFA as the
basis for these preliminary results of review for the PRC-wide entity.
Adverse Facts Available
1. Application of Adverse Facts Available
For the reasons outlined below, we have applied total adverse facts
available to the PRC-wide entity, which includes SMC (with respect to
Hammers/Sledges and Bars/Wedges), TMC (with respect to Picks/Mattocks),
Huarong (with respect to Hammers/Sledges and Picks/Mattocks), and
Jafsam (with respect to all four classes or kinds). 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 sections 782(c)(1) and (e) of the Act; (C)
significantly impedes a proceeding under the antidumping statute; or
(D) provides such information but the information cannot be verified,
the Department shall, subject to section 782(d) of the
[[Page 10495]]
Act, use facts otherwise available in reaching the applicable
determination.
According to section 776(b) of the Act, if the Department finds
that an interested party fails to cooperate by not acting to the best
of its ability to comply with requests for information, the Department
may use an inference that is adverse to the interests of that party in
selecting from the facts otherwise available. See also Notice of Final
Results of Antidumping Duty Administrative Review: Stainless Steel Bar
from India, 70 FR 54023, 54025-26 (September 13, 2005); and Notice of
Final Determination of Sales at Less Than Fair Value and Final Negative
Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from
Brazil, 67 FR 55792, 55794-96 (August 30, 2002). Adverse inferences are
appropriate ``to ensure that the party does not obtain a more favorable
result by failing to cooperate than if it had cooperated fully.'' See
SAA at 870. Furthermore, ``affirmative evidence of bad faith on the
part of a respondent is not required before the Department may make an
adverse inference.'' See Antidumping Duties; Countervailing Duties;
Final Rule, 62 FR 27296, 27340 (May 19, 1997); see also Nippon Steel
Corp. v. United States, 337 F.3d 1373, 1382-83 (Fed. Cir. 2003)
(Nippon).
We preliminarily find that SMC (with respect to Hammers/Sledges and
Bars/Wedges), TMC (with respect to Picks/Mattocks), Huarong (with
respect to Hammers/Sledges and Picks/Mattocks), and Jafsam (with
respect to all four classes or kinds) did not act to the best of their
abilities in this proceeding, within the meaning of section 776(b) of
the Act, because they failed to respond to the Department's requests
for information. Therefore, an adverse inference is warranted in
selecting from the facts otherwise available with respect to these
companies. See Nippon, 337 F.3d at 1382-83.
SMC
From the start of this review, SMC has significantly impeded the
Department's proceeding. SMC repeatedly either failed to answer, or
provided contradictory answers to, many of the questions asked by the
Department, calling into question the usability and reliability of the
responses as a whole. For example, the May 11, 23, and 30, 2006,
section A, C, and D responses were significantly deficient (with regard
to all three sections), requiring the Department to issue an extensive
first supplemental questionnaire. Likewise, SMC's September 15, 2006,
responses were also deficient with regard to all three sections (A, C,
and D), requiring the Department to issue another extensive
supplemental questionnaire. SMC's January 22 and 24, 2007, responses
also failed to provide adequate answers which would enable the
Department (a) to understand the company's structure and ownership, (b)
to compare the prices at which SMC's subject merchandise was sold in or
to the United States with a constructed value, and (c) to value the
factors of production necessary to calculate export price, constructed
export price, or normal value. See AFA and Corroboration Memo.
In proceedings involving NME countries, the Department begins with
a rebuttable presumption that all companies within the country are
subject to government control and, thus, should be assigned a single
antidumping duty deposit rate. It is the Department's policy to assign
all exporters of merchandise subject to investigation in an NME country
this single rate unless an exporter can demonstrate that it is
sufficiently independent so as to be entitled to a separate rate. SMC
did not adequately answer the questions posed by the Department
regarding its eligibility for receiving a separate rate in this
proceeding. Under the heading of ``Separate Rates'' in the original
questionnaire, the Department asked SMC, among other things, three
questions which are crucial to the separate rates determination. SMC
was asked to describe and explain: (i) Who owns your company, (ii) who
controls your company, and (iii) your company's relationship with the
national, provincial, and local governments. Throughout three separate
sets of responses, SMC never clearly answered these questions. See AFA
and Corroboration Memo.
SMC's section D response also had multiple deficiencies which
prevented the Department from being able to calculate a surrogate
normal value. For example, in the original section D questionnaire
response, the entirety of SMC's section D data was based on activity
prior to the beginning of the instant POR. See SMC's section D response
dated May 30, 2006. In the first supplemental questionnaire, SMC was
asked to provide a detailed text explanation. SMC stated that all its
sales to the United States during this POR were filled from stock from
production for the previous POR (2004-2005). See SMC's 1st supplemental
questionnaire responses dated September 15, 2006. The Department, in
its second supplemental questionnaire, asked SMC to provide source
documents which would show that the entirety of the stocks of subject
merchandise SMC sold during the POR was acquired by SMC during the
previous POR. SMC did not provide the requested documentation,
rendering its entire section D database unreliable and unusable. See
SMC's Second Supplemental Questionnaire response, dated January 24,
2007; see also AFA and Corroboration Memo.
SMC's section C database is also rendered unusable as a result of
SMC's continued and repeated failure to provide data on U.S. sales. For
example, SMC failed to report any expenses paid in market economy
currencies. SMC reported in the original section C questionnaire
response that it had incurred some, but not all, of its freight
expenses in market economy currencies but failed to provide any details
or documentation. See SMC's Section C Questionnaire Response, dated May
23, 2006. In its first supplemental questionnaire response, SMC stated
it had no market economy expenses on U.S. sales. See SMC's Section C
Questionnaire Response, dated May 23, 2006. In its second supplemental
questionnaire response, SMC stated that it incurred some freight
expenses in market economy currencies, but continued to fail to provide
any details or documentation. See SMC's 2nd supplemental A and C
questionnaire responses dated January 22, 2007; see also AFA and
Corroboration Memo. The Deaprtment was unable to evaluate any of the
market economy inputs which are a critical portion of the NME section C
questionnaire.
As demonstrated above, SMC withheld requested information, failed
to provide reliable and usable responses to the Department's
questionnaires, and significantly impeded this proceeding, warranting
the use of facts available under sections 776(a)(2)(A), (B), and (C) of
the Act. Given that its own records (which, for example, would at a
minimum have reflected any remaining stocks from the previous POR) were
reasonably available to SMC, we preliminarily find that SMC has failed
to cooperate by not acting to the best of its ability to comply with
the Department's requests for information. Accordingly, we have
preliminarily applied adverse facts available. See Section 776(b) of
the Act.
Jafsam, TMC, and Huarong
Although the Department confirmed delivery of the questionnaires
and extended another opportunity to respond, Jafsam did not submit a
response to any section of the Department's questionnaires. See Letter
from Robert James, Program Manager, entitled ``Heavy Forged Hand Tools,
[[Page 10496]]
Finished or Unfinished, With or Without Handles, from the People's
Republic of China: 02/01/2005-01/31/2006 Administrative Review,'' dated
May 23, 2006. The administrative review with regard to TMC was
rescinded only in Axes/Adzes, Hammers/Sledges, and Bars/Wedges. See
Rescission Notice.
The administrative review with regard to Huarong was rescinded only
with respect to Axes/Adzes and Bars/Wedges. See Rescission Notice.
Despite having requested these reviews, TMC and Huarong did not submit
responses to the Department's Q&V or section A, C, and D questionnaires
in their respective classes or kinds.
By not responding to the Department's request for information,
Jafsam, TMC, and Huarong each withheld information that had been
requested by the administering authority (i.e., the Department), failed
to provide such information by the deadline for submission of the
information and in the form and manner requested, and significantly
impeded the review.
Therefore, pursuant to sections 776(a)(2)(A), (B), and (C) of the
Tariff Act, the Department shall apply facts available to all three of
these companies. Further, as the information was reasonably available
to Jafsam, TMC, and Huarong, we preliminarily find that Jafsam, TMC,
and Huarong have failed to cooperate by not acting to the best of their
ability to comply with the Department's requests for information.
Accordingly, we have preliminarily applied adverse facts available to
these three companies. See section 776(b) of the Act.
2. Selection of AFA Rate
Section 776(b) of the Act provides that the Department may use as
AFA, information derived from: (1) The petition; (2) the final
determination in the investigation; (3) any previous review; or (4) any
other information placed on the record.
In administrative reviews, the Department normally selects, as AFA,
the highest rate determined for any respondent in any segment of the
proceeding. See, e.g., Freshwater Crawfish Tail Meat from the People's
Republic of China: Notice of Final Results of Antidumping Duty
Administrative Review, 68 FR 19504 (April 21, 2003); see also Stainless
Steel Plate in Coils from Taiwan: Preliminary Results and Rescission in
part of Antidumping Duty Administrative Review, 67 FR 5789 (February 7,
2002). The U.S. Court of International Trade (CIT) and the Court of
Appeals for the Federal Circuit have consistently upheld the
Department's practice in several cases. See Rhone Poulenc, Inc. v.
United States, 899 F. 2d 1185, 1190 (Fed. Cir. 1990) (Rhone Poulenc);
see also NSK Ltd. v. United States, 346 F.Supp. 2d 1312, 1335 (CIT
2004) (upholding a 73.55 percent total AFA rate, the highest available
dumping margin from a different respondent in a LTFV investigation);
see also Kompass Food Trading Int'l v. United States, 24 CIT 678, 689
(2000) (upholding a 51.16 percent total AFA rate, the highest available
dumping margin from a different, fully cooperative respondent); see
also Shanghai Taoen International Trading Co., Ltd. v. United States,
Slip Op. 05-22, at 16 (CIT 2005) (upholding a 223.01 percent total AFA
rate, the highest available dumping margin from a different respondent
in a previous administrative review).
The Department's practice when selecting an adverse rate from among
the possible sources of information is to ensure that the margin is
sufficiently adverse so ``as to effectuate the purpose of the facts
available role to induce respondents to provide the Department with
complete and accurate information in a timely manner.'' See Static
Random Access Memory Semiconductors from Taiwan; Final Determination of
Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998);
see also Certain Steel Concrete Reinforcing Bars from Turkey; Final
Results and Rescission of Antidumping Duty Administrative Review in
Part, 71 FR 65082, 65084 (November 7, 2006). The Department's practice
is to ensure ``that the party does not obtain a more favorable result
by failing to cooperate than if it had cooperated fully.'' See SAA at
870; see also D&L Supply Co. v. United States, 113 F. 3d 1220, 1223
(Fed. Cir. 1997) (D&L Supply); see also Final Determination of Sales at
Less than Fair Value: Certain Frozen and Canned Warmwater Shrimp from
Brazil, 69 FR 76910 (December 23, 2004). In choosing the appropriate
balance between providing respondents with an incentive to respond
accurately and imposing a rate that is reasonably related to the
respondent's prior commercial activity, selecting the highest prior
margin ``reflects a common sense inference that the highest prior
margin is the most probative evidence of current margins, because, if
it were not so, the importer, knowing of the rule, would have produced
current information showing the margin to be less.'' Rhone Poulenc, 899
F. 2d at 1190.
As AFA, we are preliminarily assigning to the PRC-wide entity's
sales of Axes/Adzes, Bars/Wedges, Hammers/Sledges, and Picks/Mattocks
the rates of 189.37, 139.31, 45.42, and 98.77 percent, respectively.
See AFA and Corroboration Memo.
3. Corroboration
Section 776(c) of the Act requires that the Department corroborate,
to the extent practicable, secondary information used as facts
available. Secondary information is defined as ``information derived
from the petition that gave rise to the investigation or review, the
final determination concerning the subject merchandise, or any previous
review under section 751 concerning the subject merchandise.'' See SAA
at 870; 19 CFR 351.308(d). Under section 776(c) of the Act, the
Department is granted a wide discretion in its selection of secondary
information, i.e., the AFA rate, as long as the Department can
determine, to the extent practicable, that the AFA rate has probative
value. See SAA at 870.
The SAA further provides that the term ``corroborate'' means that
the Department will satisfy itself that the secondary information to be
used has probative value. See SAA at 870. Thus, to corroborate
secondary information, the Department will, to the extent practicable,
examine the reliability and relevance of the information used. However,
unlike other types of information, such as input costs or selling
expenses, there are no independent sources for calculated dumping
margins. The only sources for calculated margins are administrative
determinations. The rate selected as AFA for the PRC-wide entity's
sales of Axes/Adzes is the highest calculated rate of any segment in
this proceeding, which was calculated in the 14th administrative
review. See Final Results of 14th Review. The rate selected as AFA for
Bars/Wedges was calculated during the 1998-1999 administrative review,
and was corroborated and used as the PRC-wide and AFA rate in the most
recently completed administrative review. See Final Results of 14th
Review. The AFA rate we are applying for the order on Hammers/Sledges
was applied as ``best information available'' (the predecessor to AFA)
during the LTFV investigation for the sole respondent China National
Machinery Import & Export Corporation, and was again corroborated and
used as the PRC-wide and AFA rate in the 14th review. Id. The AFA rate
we are applying for the order on Picks/Mattocks was calculated in the
fifth review, became the PRC-wide and AFA rate in the seventh review,
and has been used since. Id. These rates are applied to the PRC-wide
entity, i.e., those companies not eligible
[[Page 10497]]
for a separate rate with regard to the individual class or kind of
merchandise. No information has been presented in the current review
that calls into question the reliability of the information used for
these AFA rates. Thus, the Department finds that the information is
reliable.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal to
determine whether a margin continues to have relevance. Where
circumstances indicate that the selected margin is not appropriate as
AFA, the Department will disregard the margin and determine an
appropriate margin. See Fresh Cut Flowers from Mexico: Final Results of
Antidumping Administrative Review, 61 FR 6812 (February 22, 1996)
(where the Department disregarded the highest margin in that case as
adverse best information available (the predecessor to facts available)
because the margin was based on another company's uncharacteristic
business expense resulting in an unusually high margin). Similarly, the
Department does not apply a margin that has been discredited. See D&L
Supply, 113 F.3d at 1221 (the Department will not use a margin that has
been judicially invalidated). None of these unusual circumstances are
present with respect to the rates being used here.
The 139.31 percent rate for Bars/Wedges calculated in the eighth
review was affirmed by the Court of Appeals for Federal Circuit, and is
therefore a final margin. See Shandong Huarong General Corp v. United
States, 159 F.Supp.2d 714 (CIT 2001) (remanding final results); see
also Shandong Huarong General Corp v. United States, 177 F.Supp.2d 1304
(CIT 2001) (sustaining remand), aff'd 60 Fed. Appx. 797 (Fed. Cir.
2003). This rate is also the PRC-wide rate for Bars/Wedges published in
the most recently completed administrative review of this antidumping
order. See Final Results of 14th Review. Thus, this rate is the highest
rate in the proceeding and was calculated using verified information
provided by TMC during the 8th administrative review of the Bars/Wedges
order. Accordingly, we continue to find that this rate, instead of
other recently calculated rates, is an appropriate AFA rate for the
PRC-wide entity because it offers a more adequate incentive to induce
the PRC-wide entity, including SMC, Jafsam, and Huarong, to cooperate
in this proceeding. We note that this rate has been applied in the
11th, 12th, 13th, and 14th reviews as an AFA rate. See Heavy Forged
Hand Tools, Finished or Unfinished, With or Without Handles, From the
People's Republic of China: Preliminary Results of Antidumping Duty
Administrative Review of the Order on Bars and Wedges, 68 FR 10690
(March 6, 2003); see also Heavy Forged Hand Tools, Finished or
Unfinished, With or Without Handles, From the People's Republic of
China: Final Results of Antidumping Duty Administrative Reviews, Final
Partial Rescission of Antidumping Duty Administrative Reviews, and
Determination Not To Revoke in Part, 69 FR 55581 (September 15, 2004);
see also Heavy Forged Hand Tools, Finished or Unfinished, With or
Without Handles, From the People's Republic of China: Notice of Amended
Final Results of Antidumping Duty Administrative Reviews, 69 FR 69892
(December 1, 2004); see also Heavy Forged Hand Tools, Finished or
Unfinished, With or Without Handles, From the People's Republic of
China: Final Results of Antidumping Duty Administrative Reviews and
Final Rescission and Partial Rescission of Antidumping Duty
Administrative Reviews, 70 FR 54897 (September 19, 2005); see also
Final Results of 14th Review.
As stated above, the rates selected for Axes/Adzes, Bars/Wedges,
Hammers/Sledges, and Picks/Mattocks are the rates currently applicable
to the PRC-wide entity and they are not being applied to companies
which have demonstrated their eligibility for a separate rate. The
Department assumes that if an uncooperative respondent could have
demonstrated a lower rate, it would have cooperated. See Rhone Poulenc,
899 F. 2d at 1190; cf. Ta Chen Stainless Steel Pipe, Inc. v. United
States, 24 CIT 841 (2000) (respondents should not benefit from failure
to cooperate).
The information used in calculating these margins was based on
sales and production data of respondents in a prior review, together
with the most appropriate surrogate value information available to the
Department, chosen from submissions by the parties in that review, as
well as gathered by the Department itself, or on ``best information
available'' from the LTFV investigation. Furthermore, the calculations
were subject to comment from interested parties in the proceeding. See
Final Results of 14th Review at page 54270. Moreover, as there is no
information on the record of this review that demonstrates that these
rates are not appropriate to use as AFA, we determine that these rates
have relevance. As these rates are both reliable and relevant, we
determine that they have probative value. Accordingly, the selected
rates of 189.37 percent for Axes/Adzes, 139.31 percent for Bars/Wedges,
45.42 percent for Hammers/Sledges, and 98.77 percent for Picks/
Mattocks, the highest rates from any segment of this administrative
proceeding (i.e., the calculated and current PRC-wide rate for each
order) have been corroborated, to the extent practicable and as
necessary, in accordance with section 776(c) of the Act.
Preliminary Results of the Review
As a result of our reviews, we preliminarily find that the
following margins exist for the period February 1, 2005, through
January 31, 2006:
------------------------------------------------------------------------
Weighted-average
Manufacturer/exporter (percent) margin
------------------------------------------------------------------------
Heavy Forged Hand Tools from the PRC: Axes/Adzes
------------------------------------------------------------------------
PRC-Wide Rate...................................... \2\ 189.37
------------------------------------------------------------------------
Heavy Forged Hand Tools from the PRC: Bars/Wedges
------------------------------------------------------------------------
PRC-Wide Rate...................................... \3\ 139.31
------------------------------------------------------------------------
Heavy Forged Hand Tools from the PRC: Hammers/Sledges
------------------------------------------------------------------------
PRC-Wide Rate...................................... \4\ 45.42
------------------------------------------------------------------------
[[Page 10498]]
Heavy Forged Hand Tools from the PRC: Picks/Mattocks
------------------------------------------------------------------------
PRC-Wide Rate...................................... \5\ 98.77
------------------------------------------------------------------------
Case briefs from interested parties may be submitted not later than
30 days of the date of publication of this notice, pursuant to 19 CFR
351.309(c). Rebuttal briefs, limited to issues raised in the case
briefs, will be due five days later, pursuant to 19 CFR 351.309(d).
Parties who submit case or rebuttal briefs in this proceeding are
requested to submit with each argument (1) a statement of the issue and
(2) a brief summary of the argument not to exceed five pages. Parties
are also encouraged to provide a table of statutes, regulations, and
cases cited, and a diskette containing the electronic version.
---------------------------------------------------------------------------
\2\ The PRC-wide entity for Axes/Adzes includes Jafsam.
\3\ The PRC-wide entity for Bars/Wedges includes SMC and Jafsam.
\4\ The PRC-wide entity for Hammers/Sledges includes SMC,
Jafsam, and Huarong.
\5\ The PRC-wide entity for Picks/Mattocks includes Jafsam, TMC,
and Huarong.
---------------------------------------------------------------------------
Any interested party may request a hearing within 30 days of
publication of this notice. Interested parties who wish to request a
hearing or to participate if one is requested, must submit a written
request to the Assistant Secretary for Import Administration within 30
days of the date of publication of this notice. Requests should
contain: (1) The party's name, address, and telephone number; (2) the
number of participants; and (3) a list of issues to be discussed. See
19 CFR 351.310(c). Issues raised in the hearing will be limited to
those raised in the briefs. Any hearing will normally be held 37 days
after the publication of this notice, or the first business day
thereafter, unless the Department alters the date per 19 CFR
351.310(d).
The Department will issue the final results of these reviews,
including the results of its analysis of issues raised in any such
written briefs or at the hearing, if held, not later than 120 days
after the date of publication of this notice.
Assessment Rates
The Department shall determine, and CBP shall assess, antidumping
duties on all appropriate entries. The Department intends to issue
appropriate appraisement instructions for the companies subject to
these reviews directly to CBP within 15 days of publication of the
final results of these reviews. However, the final results of this
review shall be the basis for the assessment of antidumping duties on
entries of merchandise covered by the final results of these reviews
and for future deposits of estimated duties, where applicable.
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of these reviews for all shipments of
the subject merchandise entered, or withdrawn from warehouse, for
consumption on or after the publication date, as provided for by
section 751(a)(2)(C) of the Act: (1) For the exporters listed above,
the cash deposit rate will be that established in the final results of
this review (except, if the rate is zero or de minimis, no cash deposit
will be required); (2) for previously investigated or reviewed PRC and
non-PRC exporters not listed above that have separate rates, the cash
deposit rate will continue to be the exporter-specific rate published
for the most recently completed review; (3) for all PRC exporters of
subject merchandise which have not been found to be entitled to a
separate rate, the cash deposit rate will be the PRC-wide rate for each
class or kind of merchandise as follows: (a) Axes/Adzes, 189.37
percent; (b) Hammers/Sledges, 45.42 percent; (c) Picks/Mattocks, 98.77
percent; and (d) Bars/Wedges, 139.31 percent; and (4) for all non-PRC
exporters of subject merchandise which have not received their own
rate, the cash deposit rate will be the rate applicable to the PRC
exporters that supplied that non-PRC exporter. These deposit
requirements, when imposed, shall remain in effect until further
notice.
Notification to Importers
This notice 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.
These administrative reviews and notice are in accordance with
sections 751(a)(1), 751(a)(2)(B), and 777(i) of the Act and 19 CFR
351.213 and 351.214.
Dated: February 28, 2007.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E7-4166 Filed 3-7-07; 8:45 am]
BILLING CODE 3510-DS-P