Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Notices 48601

Department’s Polyvinyl Alcohol

preliminary determination concurrence

memorandum states that ‘‘in the case of

activated carbon, we compared the

export and import statistics values to

other available data and found that the

import statistics values varied

substantially greater from the other

comparison values, as shown in the

Attachment 1 chart. By comparison the

export value varied by a lesser extent.’’

See Polyvinyl Alcohol attachments to

the Final Analysis Memorandum for

Sulfanilic Acid from the PRC,

September 9, 1997. Because the public

price quotes submitted by respondents

on the record of this sulfanilic acid

review are contemporaneous to the

POR, are supported by publicly

available published information (i.e.,

the export price), and are specific to the

type and grade of activated carbon used

by the Chinese producers, we have used

the average of these prices as the

surrogate value for this factor.

Clerical Errors

Respondents contend that the

Department made one clerical error in

its preliminary results. They state that,

in calculating the surrogate value for

activated carbon, the Department used

incorrect wholesale price indices

(WPI’s) when it adjusted the sales prices

for April 4, May 2, and May 16, 1995,

for inflation. For the final results of

review, we used price quotes

contemporaneous to the time period.

Therefore, the surrogate value for this

factor will not be indexed for inflation

using the WPI.

Final Results of Review

As a result of our review of the

comments received, we have

determined that the following margins

exist:

Manufacturer/exporter Time period Margin

(percent)

Yude Chemical Industry Company ........................................................................................................................ 8/1/95–7/31/96 0.00

Zhenxing Chemical Industry Company .................................................................................................................. 8/1/95–7/31/96 0.00

PRC Rate 1 ............................................................................................................................................................. 8/1/95–7/31/96 85.20

1This rate will be applied to all firms other than Yude and Zhenxing, including all firms which did not respond to our questionnaire requests.

*Yude and Zhenxing have been collapsed for the purposes of this administrative review. See Preliminary Results of Antidumping Administrative Review of Sulfanilic Acid from the PRC (62 FR 25917) May 12, 1997. However, we have listed them separately on this chart for Customs

purposes.

The Department will instruct the

Customs Service to assess antidumping

duties on all appropriate entries. The

Department will issue appraisement

instructions directly to the Customs

Service. Furthermore, the following

deposit requirements will be effective

upon publication of these final results

for all shipments of sulfanilic acid from

the PRC 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) The

cash deposit rates for reviewed

companies named above which have

separate rates will be the rates for those

firms listed above; (2) for all other PRC

exporters, the cash deposit rate will be

the highest margin ever in the LTFV

investigation or in this or prior

administrative reviews, the PRC-wide

rate; and (3) the cash deposit rate for

non-PRC exporters of subject

merchandise from the PRC will be the

rate applicable to the PRC supplier of

that exporter. 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 order (APO) of their

responsibility concerning the

disposition of proprietary information

disclosed under APO in accordance

with 19 CR 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 terms of an APO is a sanctionable

violation.

This administrative review and notice

are in accordance with section 751(a)(1)

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

CFR 353.22.

Dated: September 9, 1997.

Jeffrey P. Bialos,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 97–24564 Filed 9–15–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–821–803]

Titanium Sponge From the Russian

Federation; Notice of Final Results of

Antidumping Duty Administrative

Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of final results of

antidumping duty administrative

review.

SUMMARY: On May 12, 1997, the

Department of Commerce (the

Department) published the preliminary

results of the administrative review of

the antidumping finding on titanium

sponge from the Russian Federation

(Russia). This notice of final results

covers the review period of August 1,

1995 through July 31, 1996. This review

covers one manufacturer, AVISMA

Titanium-Magnesium Works (AVISMA),

and three trading companies, Interlink

Metals & Chemicals, S.A. (Interlink),

TMC Trading International, Ltd. (TMC),

and Cometals, Inc. (Cometals). We gave

interested parties an opportunity to

comment on the preliminary results. We

received comments from AVISMA,

Interlink, TMC, and Titanium Metals

Corporation (TIMET), a petitioner. A

hearing was held on June 30, 1997 with

both public and closed sessions. Based

on our analysis of these comments, we

have not changed the final results from

those presented in the preliminary

results of review.

EFFECTIVE DATE: September 16, 1997.

FOR FURTHER INFORMATION CONTACT:

James Terpstra or Mark Manning, Office

of AD/CVD Enforcement, Office 4,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, N.W.,

Washington, D.C. 20230; telephone:
48602 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Notices

(202) 482–3965 and 482–3936

respectively.

SUPPLEMENTARY INFORMATION:

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 Round Agreements Act

(URAA). In addition, unless otherwise

indicated, all citations to the

Department’s regulations are to the

regulations as codified at 19 CFR part

353 (1997).

Background

On May 12, 1997, the Department

published in the Federal Register (62

FR 25920) the preliminary results of the

1995–1996 administrative review of the

antidumping finding on titanium

sponge from Russia (33 FR 12138,

August 28, 1968). This notice of final

results covers the review period for

August 1, 1995 through July 31, 1996,

covering one manufacturer, AVISMA,

and three trading companies, Interlink,

TMC, and Cometals. The Department

has conducted this review in

accordance with section 751 of the Act.

Scope of the Review

The product covered by this

administrative review is titanium

sponge from Russia. Titanium sponge is

chiefly used for aerospace vehicles,

specifically, in construction of

compressor blades and wheels, stator

blades, rotors, and other parts in aircraft

gas turbine engines. Imports of titanium

sponge are currently classifiable under

the harmonized tariff schedule (HTS)

subheading 8108.10.50.10. The HTS

item number is provided for

convenience and Customs’ purposes.

The written description remains

dispositive as to the scope of the

product coverage.

The review period (POR) is August 1,

1995 through July 31, 1996, covering

one manufacturer, AVISMA, and three

trading companies, Interlink, TMC, and

Cometals.

Analysis of Comments Received

Comment 1: Application of Facts

Available Against TMC

Petitioner argues that TMC has not

acted to the best of its ability to comply

with the Department’s requests for

information. Petitioner states, ‘‘from the

inception of the administrative review,

TMC has orchestrated a prolonged

deception in each of its responses,

concerning its activities and the

existence of affiliated parties.’’ In

addition, petitioner claims that TMC’s

submissions are ‘‘only a partial

accounting of its history and

affiliations.’’ Therefore, petitioner

argues that the application of adverse

facts available to TMC is warranted.

Petitioner argues that TMC is a false

front. Petitioner claims that TMC is

trying to have the Department believe

that AVISMA would abandon

experienced trading companies for

TMC, which, petitioner claims, does not

have experience in or knowledge of the

worldwide titanium market. In addition,

petitioner argues that TMC is not

operated similar to any other company

in the titanium sponge industry. For

example, petitioner claims that TMC’s

reported sales and profit are not

representative of a normal, arm’s-length

trading company being supplied by an

unaffiliated producer. Petitioner points

to the information on the record which

demonstrates that TMC’s profit is higher

than the average commission income

received by trading companies in the

titanium sponge industry.

To support its argument that TMC is

misrepresenting itself, petitioner points

out that TMC only began providing

more information on its activities,

ownership, and affiliation after the

deadline for submitting new

information had expired. Petitioner

asserts that the deadline for the

submission for new information was

March 16, 1997, in accordance with 19

CFR 353.31(a)(ii). Petitioner argues that

the Department should reject TMC’s

April 3, 1997 submission, which

petitioner argues provides new

information that was not verified by the

Department because it was provided on

the last day of verification. Petitioner

argues that all changes to submissions

should be presented at the beginning of

verification, which should have

included the information in TMC’s

April 3, 1997 submission. Petitioner

asserts that the information provided in

this submission is ‘‘new information

and worthless for the purpose of

determining affiliation’’ and ‘‘not

susceptible to verification.’’ Petitioner

claims that none of these submissions

were in response to a Departmental

query, but new information submitted

on its own. At a minimum, petitioner

argues that the Department should

return and disregard all of TMC’s

submissions dated after March 16, 1997.

Also included in these untimely

submissions, are TMC’s audited

financial statements, which were

submitted on March 28, 1997.

Petitioner states that it believes that

AVISMA controls and is affiliated with

TMC and that TMC tried to manipulate

the review process to prevent the

Department from learning of this

affiliation in order for AVISMA to

indirectly obtain a zero dumping

margin. Petitioner claims that the

original questionnaire requested that

TMC list all affiliated companies and

TMC failed to disclose several affiliated

parties. Given another opportunity

through its supplemental

questionnaires, petitioner claims that

TMC still failed to fully disclose its

affiliated companies, and TMC falsely

certified that its responses were

complete and accurate. Petitioner

characterizes TMC as reluctantly

deciding to disclose the true owner(s) of

TMC once it realized that the

Department would be questioning the

distribution of TMC’s profits on the last

day of verification. Petitioner alleges

that TMC’s late disclosure of this owner

indicates that TMC must believe that

this disclosure is detrimental to its

position.

Petitioner states that the Department

has two choices for adverse facts

available. We could either use the ‘‘All

Others’’ rate of 83.96 percent or

calculate a new rate by classifying

TMC’s dividend/royalty as a direct

expense and allocate it only to the

merchandise sold to the U.S. during the

period of review. Finally, petitioner

argues that TMC did not accurately and

completely answer the questionnaire in

a timely manner to the best of its ability.

Petitioner claims that the Department

is unable to make a decision on

affiliation due to the incomplete

information on the record. Petitioner

asserts that, ‘‘the Department cannot

simply assume benign neglect on TMC’s

part or that the omissions led to

harmless error. Given the still

incomplete record in this case, it is

impossible to discern the extent to

which TMC has prejudiced the final

results. These problems render all of

TMC’s responses unreliable.’’ Petitioner

argues that if the Department chooses to

use TMC responses, it would set a

precedent for future respondents that if

they fail to provide timely, complete,

and accurate responses, there should be

‘‘no fear of sanction.’’ Therefore,

petitioner argues that the evidence

supports applying adverse facts

available because TMC failed to

cooperate with the Department and did

not act to the best of its ability to

comply with the Department’s requests

for information.

TMC argues that the application of

facts available is unwarranted because

of TMC’s cooperation and timeliness in

responding to the Department’s requests

for information and at verification.

With regard to timeliness, TMC

claims that it responded to the
Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Notices 48603

Department’s initial and six

supplemental questionnaires within the

deadlines established by the Department

and submitted additional factual

information within the 180-day

regulatory deadline. In addition, TMC

claims that it submitted its audited

financial statements as soon as the

company’s first audit was completed, in

advance of verification. TMC points out

that the Department’s verification report

reveals ‘‘no material inaccuracies in the

information submitted by TMC, nor

does it indicate that there were any

items that could not be verified.’’

TMC cites CAFC court rulings which

rule that facts available may be

warranted when a large portion of the

questionnaire response is submitted

past the Department’s deadline or when

the respondent did not comply with a

Department’s request for information.

See Ansaldo Componenti S.p.A. v. U.S.,

628 F.Supp. 198, 205 (CIT 1986);

Olympic Adhesives, Inc. v. U.S., 708

F.Supp. 344 (CIT 1989), rev’d, 899 F.2d

1565 (Fed. Cir. 1990); Daewoo Elec. Co.

v. U.S., 712 F.Supp. 931, 944 (CIT

1989). TMC states that its actions are

consistent with the CAFC court rulings

in that facts available are not justified in

this case.

TMC also argues that TIMET had

several opportunities to comment on

any inadequacies found in TMC’s

supplemental questionnaire responses

and in the verification report, but chose

not to comment.

TMC asserts that TIMET’s argument

that the Department should reject TMC’s

March 5, 1997 and April 3, 1997

submissions because they are untimely

is misplaced. First, TMC claims that it

submitted the April 3, 1997 by the

Department’s established deadline and

during, not after, verification, stating

that verification took place April 3–4,

1997 (noting a typographical error in the

verification report). In addition, TMC’s

March 5, 1997 submission was

submitted well within the 180-day

deadline established by the Department

for supplemental submissions.

TMC also argues that information

presented in its April 3, 1997

submission was verified. TMC argues

that, at verification, the Department

requested information regarding TMC’s

affiliations, which included the

information contained in TMC’s April 3,

1997 submission. TMC asserts that the

Department is not required to verify

every piece of information, as stated in

19 CFR 353.36(c).

TMC argues that petitioner

inaccurately characterizes TMC’s

experience in the titanium sponge

industry and AVISMA’s rationale for

hiring TMC as its distributor for

marketing titanium sponge. In addition,

TMC argues that petitioner’s suggestion

that the Department could classify

TMC’s dividend/royalty as a direct

expense as adverse facts available is not

consistent with Departmental practice.

TMC asserts that, in these instances, the

Department’s practice is ‘‘to assume

related party payments are not at arm’s

length and, consequently, not adjust for

them in its antidumping calculations.’’

See Outokumpu Copper Rolled Products

AB v. U.S., 850 F.Supp. 16, 22 (CIT

1994).

TMC argues that TIMET’s arguments

about TMC’s profits are inappropriate

and ‘‘should not be viewed as signifying

anything other than a well-run

company.’’ TMC characterizes TIMET’s

comparison of TMC’s profits to those of

a commission agent, who takes no risk,

as unrealistic and inappropriate.

Finally, TMC argues that if the

Department determines that TMC and

AVISMA are affiliated, the final results

would not change, citing the

Department’s discussion of affiliation in

the preliminary results. TMC points out

that TIMET has not challenged this

aspect of the preliminary results.

Department’s Position

While we are concerned that TMC did

not fully disclose the nature of its

relationship to AVISMA in its initial

questionnaire responses, we have

determined that this deficiency did not

materially impair our review in this

case. Therefore, we have not used

adverse facts available against TMC.

In its response to our first

questionnaire, TMC stated that it is a

wholly owned subsidiary of TMC

(Holdings), Limited, whose share capital

is owned by Valmet S.A. The ultimate

parent of Valmet S.A. is Valmet Group

Limited. Bank Menatep of Russia is a

minority shareholder of Valmet Group

Limited. We note and are concerned by

TMC’s failure to initially disclose, in

response to our questionnaire, the fact

that Bank Menatep has a major presence

on AVISMA’s board of directors. Such

facts clearly are material to our

consideration of the nature of any

relationship between TMC and

AVISMA. Although we did not

specifically ask TMC whether any of its

parent companies were affiliated with

AVISMA, either directly or indirectly

through another affiliated company, we

did ask questions aimed at obtaining a

complete picture of the relationship

between TMC and AVISMA. To the

extent TMC was aware that Bank

Menatep was affiliated with AVISMA

and failed to report it, we would view

that as impeding this review. On the

other hand, the record of this case is not

clear on this point. The questions asked

did not specifically seek this

information; rather, the questions

focused on the structure and operations

of Valmet Group Ltd., Valmet S.A., and

TMC. Moreover, the record of this case

indicates that Bank Menatep is a

minority non-controlling shareholder of

Valmet Group Limited. As such, it is not

clear how much TMC knew or should

have known about Bank Menatep’s

various operations. Indeed, Bank

Menatep’s financial statement, later

submitted by TMC, shows it to be a

large commercial bank with extensive

holdings in numerous entities.

Additionally, as discussed below,

TMC’s substantial cooperation and

compliance with our numerous

questionnaires indicate that rejecting

TMC’s response in toto is not warranted.

Therefore, on balance, we do not believe

it reasonable to reject TMC’s entire

response. We also note that, as stated in

the preliminary results, we do not

believe it is necessary to address this

issue of possible affiliation between

TMC and AVISMA for purposes of this

review because the determination will

not affect our analysis. We must rely on

TMC’s sales to the United States

regardless of a determination on

affiliation.

With regard to the timeliness of

TMC’s questionnaire responses and

submissions, we believe that TMC has

provided its submissions in a timely

manner because its submissions were

provided earlier than the 180-day

regulatory deadline for the submission

of new information, in accordance with

19 CFR 353.31(a)(ii) (i.e., March 17,

1997), and its questionnaire responses

were submitted within deadlines

established by the Department. The

Department’s regulations at 19 CFR

353.31(b) state that the Department

‘‘may request any person to submit

factual information at any time during

a proceeding’’ (emphasis added). TMC’s

April 3, 1997 submission was provided

on the first day of verification in

response to the Department’s April 1,

1997 supplemental questionnaire.

Therefore, at verification, we accepted

the new information provided in TMC’s

April 3, 1997 submission because it was

requested by the Department at a

previous date.

In addition, TMC cooperated with the

Department’s requests for information

and at verification. As noted by TMC,

the Department’s April 16, 1997

verification report does not refer to any

lack of cooperation on the part of TMC

when questioned on its affiliations.

With regard to whether or not the

information in TMC’s April 3, 1997

submission was verified, we disagree
48604 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Notices

with the petitioner. As the verification

report indicates, TMC’s responses were

verified without any major

discrepancies. As a normal part of our

verification procedures, and in

particular because of the question of

affiliation in this case, we examined

TMC’s corporate structure and the

nature of any affiliation with other

partners in great detail. This exercise

necessarily involves asking for and

collecting additional support

documentation. Given the completeness

and success of the verification, and the

fact that the collected information did

not materially affect our analysis, we

chose not to visit another location to

further evaluate this matter.

Petitioner’s speculations on the

existence of an affiliation between

AVISMA and TMC are not relevant to

this proceeding. The Department issued

several supplemental questionnaires on

this issue and analyzed each submission

with regard to whether further

information should be requested. In

addition, at verification, we examined

documents relevant to the affiliation

issue, and noted at the time that ‘‘we

found no documentation that would

lead us to believe that AVISMA and

TMC have other dealings besides what

was presented in its response.’’ Id. at 4.

Should this question become relevant in

our analysis in future administrative

reviews, we may further examine the

issue of affiliation between TMC and

AVISMA. For purposes of this review,

the information on the record indicates

that an affiliation determination is not

relevant to our determination of the

dumping margins for TMC and

AVISMA. As stated in our preliminary

results, because AVISMA did not export

to the United States and did not have

knowledge of the ultimate destination of

the merchandise sold through TMC, ‘‘all

relevant sales to the United States are

captured in our analysis without making

an affiliation determination.’’ See

Preliminary Results of Antidumping

Duty Administrative Review: Titanium

Sponge from the Russian Federation, 62

FR 25920, 25921 (May 12, 1997).

Comment 2: Reported Entered Values

Petitioner alleges that Interlink may

have used the price that Interlink paid

to AVISMA as the entered value of the

imported titanium sponge reported to

the U.S. Customs Service (Customs).

Petitioner states that the reported

entered values are not equivalent to the

gross sales prices less moving expenses.

Petitioner claims that Interlink appears

to have undervalued its entries and,

therefore, underpaid the dumping cash

deposits and Customs duties.

If this is the case, petitioner argues

that this price may not be used because

the merchandise was not clearly

destined for export to the United States

(given that AVISMA did not have

knowledge of the final destination of the

merchandise), as stated in Nissho Iwai

decision. See Nissho Iwai American

Corp. v. U.S., 982 F.2d 505,509 (Fed.Cir.

1992). Therefore, petitioner states that

AVISMA-Interlink sales may not be

used as the basis for entered values.

AVISMA and Interlink argue that this

issue was raised in the last

administrative review and concerns

Interlink and Customs, not the

Department or TIMET. AVISMA and

Interlink report that Interlink is working

with Customs, ‘‘the United States

government agency that is, by law,

responsible for these matters, to resolve

any issues related to the proper

valuation of consumption entries.’’

Department’s Position

We agree with AVISMA and Interlink

that any questions concerning the

proper valuation of consumption entries

is a matter to be resolved by the

Customs Service. The Department has

conveyed petitioner’s allegations to

Customs.

Regarding the appropriate basis for

export price in this review, our concern

is that we have the correct sales price

(i.e., the price between the exporter who

had knowledge that the shipment was

destined to the U.S. and the first

unaffiliated U.S. customer). The record

of this case indicates that AVISMA did

not have prior knowledge that the final

destination of the shipment in question

was the United States. Because there is

no affiliation between Interlink and the

U.S. customer, we are satisfied that the

reported sales price is the appropriate

basis for the export price.

Comment 3: Interlink’s U.S. Sales

Petitioner alleges that the Interlink

sales used in the calculation of its

dumping margin are not bona fide sales

for commercial purposes and should be

disregarded. Petitioner alleges that

Interlink sales which entered the United

States under temporary importation

bonds (TIBs) are priced lower than the

Interlink sales entered for consumption

which are used to calculate the

dumping margin. In addition, petitioner

states that these sales are considerably

higher than U.S. and world prices of

titanium sponge for the review period.

Petitioner states that the Department has

disregarded sales when the prices were

significantly higher than world market

prices and it believed that the

respondent had artificially set prices.

See Notice of Final Determination of

Sales at Less Than Fair Value:

Manganese Metal from the People’s

Republic of China, 60 FR 56045, 56046

(November 6, 1995); Chang Tieh

Industry Co., Ltd. v. U.S., 840 F.Supp.

141, 146 (CIT 1993). Insofar as

petitioner argues that Interlink’s sales

used to calculate the dumping margin

were not made on commercial terms, it

asserts that Interlink’s sales should be

disregarded and the Department should

apply adverse facts available as

Interlink’s dumping margin.

AVISMA and Interlink disagree with

petitioner’s characterization of

Interlink’s sales. AVISMA and Interlink

argue that the sales in question were

made on different sales terms than sales

that entered under TIBs (i.e., Interlink

assumed responsibility for all expenses

and was the importer of record).

AVISMA and Interlink argue that the

sales entered under TIBs were sold on

an ‘‘in warehouse in Europe’’ basis,

where the customer took possession in

Europe and was responsible for

payment for all additional movement

expenses, including the movement

expenses to the United States.

Department’s Position

We disagree with petitioner that there

is a basis for disregarding the sales in

question. There is no evidence that

these sales involve ‘‘artificially set

prices.’’ Moreover, it is apparent that the

higher prices merely reflect the fact that

the sales in question were made on

different terms of sale. Interlink

submitted the sales and entry

documentation for the sales in question

in response to the Department’s

February 4, 1997 request. See Letter

from Wilmer, Cutler & Pickering to

Robert S. LaRussa, February 11, 1997.

We note that the documentation reports

the price charged to Interlink’s customer

and the sales terms are reported as

‘‘delivered, duty paid.’’ In addition, the

Customs entry document reports that

Interlink paid the 83.96 percent

antidumping cash deposit for the sales

in question. The customs duty and

antidumping cash deposit account for

much of the difference between these

prices and the ‘‘in warehouse in

Europe’’ price level. See Analysis

Memorandum for the Final Results of

1995/1996 Administrative Review of the

Antidumping Finding of Titanium

Sponge from the Russian Federation for

further discussion of our analysis.

Comment 4: Future Entries of Subject

Merchandise

Petitioner argues that the Department

should establish a single cash deposit

rate for all respondents in this review.

Although the Department did not
Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Notices 48605

establish a single rate in the 1994/1995

review, petitioner argues that the

circumstances differ in this review

because AVISMA changed its selling

practices and made sales under this new

sales structure, and the record states

that TMC became the sole distributor of

AVISMA’s titanium sponge in

November 1995. Petitioner adds that

respondents acknowledge that TMC

knows the ultimate destination of

merchandise it sells through resellers,

and, therefore, TMC is the true exporter.

Petitioner refers to cases where the

Department has applied a ‘‘knowledge

test,’’ which determines whether the

non-NME reseller qualifies as an

exporter. See Final Results of

Antidumping Duty Administrative

Reviews; Antifriction Bearings (Other

Than Tapered Roller Bearings) and Parts

Thereof From France, 57 FR 28360,

28427 (June 24, 1992); Final

Determination of Sales at Less Than Fair

Value; Ferrovanadium and Nitrided

Vanadium From the Russian Federation,

60 FR 27957, 27959 (May 26, 1995).

In addition, petitioner claims that

Interlink will never again be the

exporter and the Department will not be

able to calculate a separate margin for

Interlink, unless Interlink purchases

from another entity which does not have

knowledge of the ultimate destination.

Therefore, petitioner argues that because

TMC will be the only exporter for future

entries of titanium sponge, the dumping

margin found for TMC should be the

cash deposit rate for all future entries by

any respondent until the next final

results of review are published.

AVISMA and Interlink argue that

TIMET is incorrect regarding: (1) The

meaning of the marketing arrangement

between Interlink and TMC; (2) what

TMC knew about the destination of the

Interlink sales covered by this review;

and (3) the future AVISMA/TMC/

Interlink marketing arrangements for

titanium sponge sales. AVISMA and

Interlink argue that TMC had only a

general awareness of Interlink’s sales

plans and did not know the destination

of each sale made by Interlink (an

arrangement similar to TMC’s sales

relationship with AVISMA). In addition,

AVISMA and Interlink state that,

because of the circumstances of the sale,

TMC could not and did not know who

or in what country the customer was

located. Finally, AVISMA and Interlink

argue that petitioner is incorrect in

asserting that Interlink will never again

be an exporter because, as stated in the

last review, the relationship between

AVISMA and its resellers is continuing

to evolve and sales may be based on a

different distribution approach in the

future.

Department’s Position

We disagree with petitioner’s

assertion that Interlink will never again

be an exporter of the subject

merchandise and that the application of

a single dumping margin for all

exporters is appropriate. Speculation on

the future relationships between

AVISMA and its resellers is not relevant

to this administrative review. What is

relevant is that during this review,

AVISMA was able to sell directly to

TMC, Interlink, and Cometals. Due to

the proprietary nature of the

information on the record, please see

the Analysis Memo for a further

discussion of the Department’s position.

Comment 5: U.S. Credit Expense

Petitioner claims that the Department

may have committed a ministerial error

by not including credit cost in its

margin calculations. Petitioner argues

that the Department should make an

adjustment for credit based on the terms

of sale.

AVISMA and Interlink argue that

petitioner is referring to a citation to the

Department’s regulations which would

only apply to reviews based on requests

filed with the Department on or after

July 1, 1997 (section 351.701; 62 FR

27296, 27416–17 (May 19, 1997)). In

addition, AVISMA and Interlink claim

that the Departmental practice is to not

make circumstance of sale adjustments

in cases involving non-market

economies. See Final Determinations of

Sales at Less Than Fair Value:

Oscillating Fans and Ceiling Fans from

the People’s Republic of China, 56 FR

55271, 55276 (October 25, 1991); Final

Determination of Sales at Less Than Fair

Value: Certain Helical Spring Lock

Washers from the People’s Republic of

China, 58 FR 48833, 48839 (September

20, 1993) (Lock Washers); Final

Determination of Sales at Less Than

Faire Value: Saccharin from the People’s

Republic of China, 59 FR 58818, 58823

(November 15, 1994); Final

Determination of Sales at Less Than Fair

Value: Manganese Metal from the

People’s Republic of China, 60 FR

56045, 50–51 (November 6, 1995).

Department’s Position

We disagree with petitioner that we

should make an adjustment for credit

based on the terms of sale. If this

proceeding occurred in a marketeconomy country, we would adjust

normal value for the imputed credit

calculated on the sales to the United

States, in accordance with section

773(a)(6)(C)(iii) of the Act. However, in

cases involving non-market economies

(NMEs), Departmental practice is to not

adjust for differences in the

circumstances of sale (COS), such as

imputed credit. See Lock Washers, DOC

Position to Comment 4 at 48839.

Section 773(a)(6)(C) of the Act states

that COS adjustments to normal value

are only required upon a sufficient

showing that differences in

circumstances of sale exist justifying the

adjustment. In this case, the only

information we have regarding credit

costs in the Brazilian home market is

the financial statements of the Brazilian

producers. These statements do not

specify whether Brazilian home market

sales include any particular selling

expenses. Therefore, we do not have any

basis upon which to determine whether

adjustment to the surrogate expenses is

appropriate. Given the imprecise nature

of the information on selling expenses,

we have no basis to conclude that such

adjustments are warranted in this case.

See Final Determination of Sales at Less

Than Fair Value: Bicycles from the

People’s Republic of China, DOC

Position to Comment 1, 61 FR 19026,

19031 (April 30, 1996).

Comment 6: Value of Steel Sheet

AVISMA and Interlink argue that the

Department’s value for steel sheet is far

in excess of the cost that one would

expect to pay for this ‘‘relatively minor

input,’’ and the SITC category used by

the Department is incorrect and should

not be used in the calculation of normal

value. AVISMA and Interlink provided:

(1) Information regarding the types of

steel covered by the SITC classification

used by the Department; (2) alternative

HS classifications which AVISMA and

Interlink believe are more appropriate;

and (3) Brazilian import data for the HS

classifications for steel.

AVISMA and Interlink claim that,

although the Department used the same

SITC category in the prior review, there

was apparently an arithmetic error for

this input which AVISMA and Interlink

did not recognize because the value

appeared to be reasonable. In the

current review, although now the

calculation is arithmetically correct,

AVISMA and Interlink claim that the

cost for steel sheet far exceeds any

reasonable expectation of a cost for a

minor input. Therefore, AVISMA and

Interlink argue that the Department

must reject its value for steel sheet

because it clearly overstates the value of

steel and does not produce a reasonable

result.

AVISMA and Interlink state the SITC

classification used by the Department is

comprised of two HS categories: 7208.44

and 7208.45. AVISMA and Interlink

state that the difference between the two

HS categories is the thickness of the
48606 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Notices

sheet. AVISMA and Interlink argue that

the more narrow thickness category is

more appropriate because lighter drums

are preferred in the titanium sponge

industry since they are easier to handle

and are less expensive to make and

transport. Further, AVISMA and

Interlink argue that the U.S. Department

of Transportation’s Research and

Special Programs Administration issued

regulations which state that steel drums

which contain hazardous wastes must

meet a minimum thickness requirement

of 0.92 mm and have a nominal

thickness of 1.0 mm. AVISMA and

Interlink report that the greatest

thickness of steel in the regulations is

1.9 mm.

AVISMA and Interlink further argue

that the HS classification 7208.45

contains specialty steel sheet, while HS

classification 7208.35, the only other HS

category of hot-rolled steel sheet with a

thickness of less than 3 mm, contains

the commodity type hot-rolled steel

sheet. Therefore, AVISMA and Interlink

believe that the Department should

value steel sheet from HS classification

7208.35 or a weighted-average of HS

categories 7208.35 and 7208.45.

Department’s Position

We disagree with AVISMA and

Interlink that the SITC category used to

value steel sheet is incorrect, given the

evidence on the record. AVISMA did

not provide any specifications of the

steel sheet used for producing steel

drums in any of its questionnaire

responses. Because of the absence of

this information, the Department

determined in the preliminary results

that the SITC category for steel sheet

used in the previous administrative

review would be appropriate to value

steel sheet for this instant review.

Parties did not file comments on the

Department’s use of the SITC category

for steel sheet in the previous review.

AVISMA’s and Interlink’s argument

that there was an arithmetic error in the

previous review should have been

raised in the previous review. Because

there is no information on the record of

this case describing the specifications of

the steel sheet used by AVISMA, we are

not in the position to make a

determination on the thickness of the

steel used. Therefore, we determined

that the use of the basket SITC category

to value steel sheet is appropriate for

this review.

Final Results of Review

As a result of the comments received,

we did not revise our preliminary

results and determined that the

following margins exist:

Manufacturer/exporter Review period Margin

(percent)

Russia-wide rate .................................................................................................................................................... 8/1/95–7/31/96 83.96

Cometals, Inc ......................................................................................................................................................... 8/1/95–7/31/96 28.31

Interlink Metals & Chemicals ................................................................................................................................. 8/1/95–7/31/96 0.00

TMC Trading International ..................................................................................................................................... 8/1/95–7/31/96 0.00

The Department shall determine, and

the U.S. Customs Service shall assess,

antidumping duties on all appropriate

entries. The following deposit

requirement will be effective for all

shipments of titanium sponge from

Russia entered, or withdrawn from

warehouse, for consumption on or after

the publication date of the final results

of this administrative review, as

provided by section 751(a)(1) of the Act:

(1) The cash deposit rate for

merchandise manufactured and

exported to the United States directly by

AVISMA will be the Russia-wide rate

established in these final results of

review; (2) the cash deposit rates for

merchandise exported to the United

States by Interlink, TMC, or Cometals

will be those rates established for

Interlink, TMC, or Cometals in these

final results of review; (3) for

merchandise exported by manufacturers

or exporters not covered in this review

but covered in the original LTFV

investigation or a previous review and

have a separate rate, the cash deposit

rate will continue to be the most recent

rate published in the final

determination or final results for which

the manufacturer or exporter received a

company-specific rate; (4) for Russian

manufacturers or exporters not covered

in the LTFV investigation or in this or

prior administrative reviews, the cash

deposit rate will continue to be the

Russia-wide rate; and (5) the cash

deposit rate for non-Russian exporters of

subject merchandise from Russia that

were not covered in the LTFV

investigation or in this or prior

administrative reviews will be the rate

applicable to the Russian supplier of

that exporter. These deposit rates, when

imposed, shall remain in effect until

publication of the final results of the

next administrative review.

Further, because the rates for Interlink

and TMC have been determined to be

zero, we will instruct Customs to

liquidate all exports of the subject

merchandise during the POR by

Interlink and TMC, without regard to

the antidumping duty. As stated in the

preliminary results, we found that

AVISMA’s and Cometals’ exports during

the POR entered the United States under

temporary importation bonds, which are

not subject to the antidumping order.

The Department will issue appraisement

instructions directly to the U.S. Customs

Service.

This notice also serves as a final

reminder to importers of their

responsibility under 19 CFR 353.26(b) 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 the only

reminder to parties subject to

administrative protective order (APO) in

this review of their responsibility

concerning the disposition of

proprietary information disclosed under

APO in accordance with 19 CFR

353.34(d). 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)

of the Act (19 U.S.C. 1675(a)(1)).

Dated: September 9, 1997.

Jeffrey P. Bialos,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 97–24469 Filed 9–15–97; 8:45 am]

BILLING CODE 3510–DS–P