[Federal Register Volume 62, Number 179 (Tuesday, September 16, 1997)]
[Notices]
[Pages 48592-48594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24562]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-475-703]


Granular Polytetrafluoroethylene Resin From Italy; 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.

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SUMMARY: On May 13, 1997, the Department of Commerce published the 
preliminary results of its 1995-96 administrative review of the 
antidumping duty order on granular polytetrafluoroethylene resin from 
Italy. The review covers one manufacturer/exporter, Ausimont S.p.A, for 
the period August 1, 1995, through July 31, 1996. We gave interested 
parties an opportunity to comment on our preliminary results. We 
received comments from Ausimont and E.I. DuPont de Nemours & Company, 
the petitioner in this proceeding. We have changed our preliminary 
results as explained below. The final margin for Ausimont is listed 
below in the section ``Final Results of Review.''

EFFECTIVE DATE: September 16, 1997.

FOR FURTHER INFORMATION CONTACT: Chip Hayes or Richard Rimlinger, 
Office of AD/CVD Enforcement, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-
4733.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (the Tariff Act), are references to the provisions 
effective January 1, 1995, the effective date of the amendments made to 
the Tariff Act by the Uruguay Round Agreements Act (URAA). In addition, 
unless otherwise indicated, all citations to the Department's 
regulations are to 19 CFR part 353 (1997).

Background

    On May 13, 1997, the Department of Commerce (the Department) 
published in the Federal Register the preliminary results of its 1995-
96 administrative review of the antidumping duty order on granular 
polytetrafluoroethylene resin (PTFE) from Italy (62 FR 26283).

[[Page 48593]]

We gave interested parties an opportunity to comment on the preliminary 
results. We received briefs from Ausimont S.p.A (Ausimont) and E.I. 
DuPont de Nemours & Company (DuPont). There was no request for a 
hearing. The Department has now conducted this review in accordance 
with section 751 of the Tariff Act.

Scope of the Review

    The product covered by this review is granular PTFE resins, filled 
or unfilled. This order also covers PTFE wet raw polymer exported from 
Italy to the United States. See Granular Polytetrafluoroethylene Resin 
from Italy; Final Determination of Circumvention of Antidumping Duty 
Order, 58 FR 26100 (April 30, 1993). This order excludes PTFE 
dispersions in water and fine powders. During the period covered by 
this review, such merchandise was classifiable under item number 
3904.61.00 of the Harmonized Tariff Schedule (HTS). We are providing 
this HTS number for convenience and customs purposes only. The written 
description of the scope remains dispositive.
    The review covers one Italian manufacturer/exporter of granular 
PTFE resin, Ausimont, and the period August 1, 1995 through July 31, 
1996.

Analysis of Comments Received

    Comment 1: Ausimont contends that the Department erred in using the 
purchase order date or blanket order date as the date of sale in the 
U.S. market. The firm asserts that the Department should have used the 
date of invoice as the date of sale and states that this is the 
Department's current practice and its intention as stated in the 
proposed regulations (citing Antidumping Duties: Proposed Rule, 61 FR 
7308, February 27, 1996), finalized in the same form on May 19, 1997 
(62 FR 27296). Ausimont also cites to a March 29, 1996 memorandum 
signed by the Assistant Secretary for Import Administration that 
implements the date-of-invoice methodology effective April 1, 1996.
    DuPont replies that the proposed regulations do not oblige the 
Department to use the date-of-invoice methodology. The petitioner 
points out that the Department has the discretion to use a date other 
than the date of invoice if such a date better reflects the date on 
which the exporter establishes the material terms of sale. The 
petitioner believes that the reported purchase and blanket order dates 
more adequately reflect the date on which material terms of sale were 
established for most of Ausimont's U.S. sales. Therefore DuPont asserts 
that the Department should continue to use the purchase and blanket 
order dates as the dates of sale for identifying contemporaneous home 
market sales.
    Department's Position: The record indicates that Ausimont's U.S. 
prices and quantities are not usually fixed before the invoice date. 
Thus, we continue to hold that the date of invoice is the correct date 
for determining date of sale. (See Antidumping Duties: Proposed Rule, 
61 FR 7308, February 27, 1996, section 351.401(i) at 7381, and preamble 
at 7330; March 29, 1996 memorandum from the Assistant Secretary for 
Import Administration to the Deputy Assistant Secretaries for Import 
Administration; Certain Internal-Combustion Industrial Forklift Trucks 
From Japan, 62 FR 5592, February 6, 1997.)
    Comment 2: Ausimont contends that, in calculating the constructed 
export price (CEP) profit ratio based on Ausimont's financial 
statements, the Department erred by failing to include manufacturing 
costs for U.S. operations in the calculation of the amount of profit 
for the firm, while attributing the profit ratio to those costs in 
deriving a CEP-profit adjustment. Ausimont states that this results in 
a profit allocation that is not an ``apples-to-apples'' comparison in 
its calculation and application and creates an unfair and inflated 
apportionment of profit both to Ausimont's further-manufacturing 
operations and to its U.S. selling activities. Respondent contends that 
the Department should recalculate the profit ratio by including those 
manufacturing costs in the total expense amount.
    DuPont responds that it agrees that the Department's profit-ratio 
calculation is incorrect. However, DuPont argues that, rather than 
correct its calculation, the Department should calculate a CEP-profit 
ratio based on the operating income and operating expenses for Ausimont 
U.S.A. and the Fluoride Specialties segment of Ausimont SpA. DuPont 
states that it is the Department's policy to use an operating profit 
rather than a net profit.
    In rebuttal to DuPont's argument, Ausimont states, among other 
things, that there is no precedent for using an operating profit in the 
calculation of a CEP-profit ratio. Respondent points out that in 
section 351.402(d)(1) of its proposed (and now finalized) regulations 
the Department indicated a preference for using the aggregate of 
expenses and profit in calculating total expenses and total actual 
profit. Ausimont also refers to the Department's final results 
concerning Certain Cold-Rolled Carbon Steel Flat Products from the 
Netherlands (62 FR 18476, April 15, 1997) and Certain Cold-Rolled and 
Corrosion-Resistant Carbon Steel Flat Products from Korea (62 FR 18404, 
April 15, 1997) as an affirmation of this methodology. Therefore, 
Ausimont maintains that the Department should continue to use total 
expenses and total actual profit to determine CEP profit for the final 
results. Ausimont also states that it continues to protest Petitioner's 
attempt to raise an untimely affirmative argument in Petitioner's 
rebuttal brief.
    Department's Position: We agree with Ausimont that we erred in the 
calculation of its CEP-profit ratio by failing to include manufacturing 
costs for U.S. operations in the CEP-profit ratio calculation which we 
applied to total U.S. expenses. We also agree with Ausimont that it is 
our normal practice to use the aggregate of all expenses and profit in 
the calculation of CEP profit. The Department's general practice in the 
calculation of profit rates is to incorporate all selling, general and 
administrative expenses and expenses normally employed in the 
calculation of the cost of production. In this case, if we were to use 
Ausimont's operating profit as part of the CEP-profit calculation, we 
would necessarily exclude from that calculation certain expenses that 
we would usually include were we to compute the cost of production for 
Ausimont. Therefore, it is more appropriate in this instance for the 
calculation of CEP profit to start with Ausimont's reported net income. 
As in this case, where we must compute CEP profit using information 
from financial statements, our methodology for calculating total cost 
for the purpose of determining CEP profit, although subject to data 
limitations, is generally the same as that used to calculate the cost 
of manufacture and SG&A expenses for purposes of determining the cost 
of production and constructed value. Thus, we included the total cost 
of materials and fabrication and SG&A expenses in our calculation of 
Ausimont's CEP profit.
    This practice for calculating a net profit is consistent with the 
Statement of Administrative Action (H.R. Doc. 316, Vol. 1 103d Cong., 
2d sess. (1994)) (SAA), which repeatedly gives reference to total 
production and selling expenses in determining CEP profit. For example, 
when discussing alternatives for the use of financial reports, the SAA 
states that the use of reports ``will depend on the detail in which 
such reports break down total production and selling expenses and 
profits' (SAA at 825, emphasis added). In addition, in cases in which 
we have explained the calculation of

[[Page 48594]]

CEP profit, we frequently refer to the term ``total profit'' and ``all 
expenses'', thus making it clear that the calculation of CEP profit is 
based on the company's profits net of all expenses, i.e., net income. 
See Certain Cold-Rolled and Corrosion-Resistant Carbon Steel Flat 
Products From Korea: Final Results of Antidumping Duty Administrative 
Reviews, 62 FR 18404, 18440 (April 15, 1997); Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Pasta From 
Italy, 61 FR 30326, 30352 (June 14, 1996). Therefore, we disagree with 
DuPont that an operating profit is appropriate for determining a CEP-
profit adjustment in this instance. For these final results, we have 
calculated respondent's CEP-profit ratio based on total profit and 
total expenses and ensured that we have included cost for manufacturing 
operations in the United States in the computation of the profit rate 
to apply to U.S. expenses.
    With regard to respondent's claim that it was inappropriate for the 
Department to accept petitioner's untimely submission of an affirmative 
argument, we disagree with the respondent. The Department has the right 
to seek comments or additional information at any time during a 
proceeding. 19 CFR 353.38(a). The CEP-profit calculation is a new 
methodology to implement provisions of the URAA. Therefore, the 
Department chose to exercise its prerogative to consider the argument 
and solicit rebuttal from respondent in order to more fully explore the 
issue. The Department has now had the opportunity to consider comments 
and make a fully informed determination.

Final Results of the Review

    We determine the that following weighted-average dumping margin 
exists:

------------------------------------------------------------------------
                                                                Margin  
          Manufacturer/exporter                 Period        (percent) 
------------------------------------------------------------------------
Ausimont S.p.A..........................  08/01/95-07/31/96         5.95
------------------------------------------------------------------------

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. Ausimont's sales 
were all through its subsidiary in the United States. Therefore, we 
divided the total dumping margins for the reviewed sales by the total 
entered value of those reviewed sales. We will direct Customs to assess 
the resulting percentage margin against the entered Customs values for 
the subject merchandise on entries during the period of review (POR). 
While the Department is aware that the entered value of sales during 
the POR is not necessarily equal to entered value of entries during the 
POR, use of entered value of sales as the basis of the assessment rate 
permits the Department to collect a reasonable approximation of the 
antidumping duties which would have been determined if the Department 
had reviewed those sales of merchandise actually entered during the 
POR. The Department will issue appraisement instructions directly to 
the Customs Service.
    Furthermore, the following deposit requirements will be effective 
for all shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date of these 
final results of administrative review, as provided by section 
751(a)(1) of the Tariff Act: (1) The cash deposit rate for Ausimont 
will be 5.95 percent; (2) for merchandise exported by manufacturers or 
exporters not covered in this review but covered in the original less-
than-fair-value (LTFV) investigation or a previous review, the cash 
deposit 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; (3) if the exporter is not a firm 
covered in this review, a previous review, or the original 
investigation, but the manufacturer is, the cash deposit rate will be 
that established for the manufacturer of the merchandise in the final 
results of this review, a previous review, or the LTFV investigation; 
and (4) if neither the exporter nor the manufacturer is a firm covered 
in this or any previous review, the cash deposit rate will be 46.46 
percent, the ``all others'' rate established in the LTFV investigation 
(50 FR 26019, June 24, 1985).
    This notice 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 the only reminder to parties subject to 
administrative protective orders (APOs) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 353.34(d)(1). Timely written notification 
of the return/destruction of APO materials or conversion to judicial 
protective order is hereby requested. Failure to comply with the 
regulations and the terms of an APO is a sanctionable violation.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Tariff Act (19 USC 1675(a)(1)) and section 
353.22 of the Department's regulations (19 CFR 353.22 (1997)).

    Dated: September 9, 1997.
Jeffrey P. Bialos,
Acting Assistant Secretary for Import Administration.
[FR Doc. 97-24562 Filed 9-15-97; 8:45 am]
BILLING CODE 3510-DS-P