Federal Register / Vol. 62, No. 200 / Friday, October 17, 1997 / Notices 54087

in price-to-price comparisons. However,

if the Department’s finding of fact is not

correct, Minasligas maintains that it is

the Department’s practice to calculate

U.S. imputed credit expenses based on

a U.S. price exclusive of VAT.

The petitioners contend that the

Department did not subtract VAT taxes

on U.S. sales from the U.S. price.

Instead, petitioners argue that the

Department determined the difference

between the weighted-average per unit

VAT taxes collected on home market

sales and the per-unit VAT taxes owed

by Minasligas on each U.S. sale, and

then subtracted this difference from

normal value (NV) which included VAT

taxes collected on home market sales, in

accordance with its normal practice.

Department’s Position

We agree with Minasligas that this

adjustment was inappropriate. For

complete discussion and analysis, see

the Department’s October 6, 1997,

Decision Memorandum Re: Alleged

Ministerial Errors in the Calculation of

the Final Antidumping Duty Margin for

Companhia Ferroligas Minas-GeraisMinasligas. Therefore, for these

amended final results, we have not

made an adjustment to NV for VAT on

U.S. sales.

Issue 4: All Others Rate

The Department erroneously reported

an ‘‘All Others Rate’’ of 91.06 percent in

the notice of final results. The correct

‘‘All Others Rate’’ is 35.95 percent. (See

Amended Final Determination of Sales

at Less Than Fair Value (LTFV):

Ferrosilicon from Brazil, 59 FR 8599,

February 23, 1995.) Thus, we are

amending the final results to replace the

incorrect rate of 91.06 percent with the

correct rate of 35.95 percent.

Amended Final Results

As a result of our correction of the

ministerial errors for Minasligas, we

have determined the following amended

margin exists for Minasligas for the

period covering March 1, 1995 through

February 29, 1996:

Manufacturer/Exporter

Amended

WeightedAverage

Margin

(percent)

Minasligas ................................ 2.54

The Department shall determine, and

the U.S. Customs Service shall assess,

antidumping duties on all appropriate

entries. The Department will issue

appraisement instructions concerning

the respondent directly to the U.S.

Customs Service.

Furthermore, the following cash

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merchandise entered, or withdrawn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

amended final results of administrative

review, as provided for by section

751(a)(1) of the Act: (1) the cash deposit

rate for the reviewed company named

above will be the rate as stated above;

(2) for previously investigated or

reviewed companies not listed above,

the cash deposit rate will continue to be

the company-specific rate published for

the most recent period; (3) if the

exporter is not a firm covered in this

review, or the original LTFV

investigation, but the manufacturer is,

the cash deposit rate will be the rate

established for the most recent period

for the manufacturer of the

merchandise; and (4) if neither the

exporter nor the manufacturer is a firm

covered in this review, the cash deposit

rate for all other manufacturers or

exporters will be 35.95 percent, the All

Others rate established in the amended

final LTFV investigation. These deposit

requirements, when imposed, shall

remain in effect until publication of the

final results of the next administrative

review.

This notice services as the 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 CFR 353.34(d). Timely written

notification of return/destruction of

APO materials or conversion to judicial

protective order is hereby requested.

Failure to comply with regulations and

the terms of the APO is an sanctionable

violation.

These amended final results of

administrative review and notice are in

accordance with section 751(a)(1) of the

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

CFR 353.28(c)).

Dated: October 10, 1997.

Robert S. LaRussa,

Assistant Secretary for Import

Administration.

[FR Doc. 97–27631 Filed 10–14–97; 3:02 pm]

BILLING CODE 3510–DS–M

DEPARTMENT OF COMMERCE

International Trade Administration

[A–351–806]

Silicon Metal From Brazil; Amended

Final Results of Antidumping Duty

Administrative Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Amended final results of

antidumping duty administrative

review.

SUMMARY: The Department of Commerce

(the Department) is amending its final

results of review, published on January

14, 1997, of the antidumping duty order

on silicon metal from Brazil, to reflect

the correction of ministerial errors in

those final results. The period covered

by these amended final results is the

period July 1, 1994 through June 30,

1995.

EFFECTIVE DATE: October 17, 1997.

FOR FURTHER INFORMATION CONTACT: Fred

Baker, Alain Letort, or John Kugelman,

AD/CVD Enforcement Group III—Office

8, Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, N.W.,

Washington, D.C. 20230, telephone 202/

482–2924 (Baker), 202/482–4243

(Letort), or 202/482–0649 (Kugelman),

fax 202/482–1388.

SUPPLEMENTARY INFORMATION:

Applicable Statute and Regulations

Unless otherwise indicated, all

citations to the Act are references to the

provisions effective January 1, 1995, the

effective date of the amendments made

to the Act by the Uruguay Round

Agreements Act (URAA).

Background

The Department published the final

results of the fourth administrative

review, covering the period July 1, 1994

through June 30, 1995, of the

antidumping duty order on silicon

metal from Brazil on January 14, 1997

(62 FR 1970) (Fourth Review Final

Results). The respondents are

Companhia Brasileira Carbureto de

Ca ́lcio (CBCC), Companhia Ferroligas

Minas Gerais-Minasligas (Minasligas),
54088 Federal Register / Vol. 62, No. 200 / Friday, October 17, 1997 / Notices

Eletrosilex Belo Horizonte (Eletrosilex),

Rima Industrial S.A. (RIMA), and

Camargo Corre ̃a Metais (CCM). The

petitioners are American Alloys, Inc.,

Elken Metals, Co., Globe Metallurgical,

Inc., SMI Group, and SKW Metals &

Alloys.

On January 31, 1997, Minasligas and

RIMA filed clerical error allegations. On

February 4, 1997, the petitioners filed

clerical error allegations with respect to

Eletrosilex, Minasligas, RIMA, and

CBCC. On February 6, 1997, Eletrosilex

filed clerical error allegations. On

February 7, 1997, petitioners filed a

response to the clerical error allegations

submitted by Minasligas and RIMA.

Also on February 7, 1997, RIMA

submitted a response to the petitioners’

clerical error allegations. On February

11, 1997, CBCC submitted a response to

petitioners’ clerical error allegations. On

February 13, 1997, petitioners submitted

a response to Eletrosilex’s clerical error

allegations. Pursuant to the CIT’s order,

we are now addressing the ministerial

allegations and amending our final

results of the fourth review. See

American Silicon Technologies et al., v.

United States, Slip Op. 97–113, August

18, 1997.

Scope of Review

The merchandise covered by this

review is silicon metal from Brazil

containing at least 96.00 percent but less

than 99.99 percent silicon by weight.

Also covered by this review is silicon

metal from Brazil containing between

89.00 and 96.00 percent silicon by

weight but which contains a higher

aluminum content than the silicon

metal containing at least 96.00 percent

but less than 99.99 percent silicon by

weight. Silicon metal is currently

provided for under subheadings

2804.69.10 and 2804.50 of the

Harmonized Tariff Schedule (HTS) as a

chemical product, but is commonly

referred to as a metal. Semiconductor

grade silicon (silicon metal containing

by weight not less than 99.99 percent

silicon and provided for in subheading

2804.61.00 of the HTS) is not subject to

the order. HTS item numbers are

provided for convenience and for U.S.

Customs purposes. The written

description remains dispositive as to the

scope of product coverage.

Clerical Error Allegations

Comment 1

Minasligas argues that the Department

erred in its calculation of its cost of

production/constructed value (COP/CV)

by failing to offset Minasligas’ financial

expenses with its financial income. That

Minasligas had short-term financial

income, Minasligas argues, is evident

from its 1994 financial statement.

Minasligas argues that there are three

categories of financial income which the

Department erroneously determined not

to allow as an interest income offset.

The first is ‘‘income from short term

applications,’’ which Minasligas alleges

the Department disallowed as an offset

because it mistook it to be compensation

for inflation. In fact, Minasligas argues,

the record shows that the effects of

inflation are reflected on the financial

statements through the recording of

monetary correction of fixed assets,

shareholders equity, and other accounts

subject to such correction. Thus,

Minasligas argues, the Department

cannot interpret Minasligas’

submissions or its financial statements

to indicate that inflation is included in

‘‘income from short term applications.’’

The second category of income which

the Department erroneously failed to

include as an offset to Minasligas’

financial expenses, Minasligas argues, is

the category ‘‘exchange gains.’’

Minasligas argues that the Department

should include exchange gains as an

offset to financial expenses because it

included exchange losses as a financial

expense.

The third category of income which

the Department erroneously failed to

include as an offset to financial

expenses, Minasligas argues, is the

category ‘‘gains on monetary

correction.’’ Minasligas argues that the

Department should include this

category of income as an offset to

financial expenses because it included

an amount for monetary correction of

loans (i.e., the inflation adjustment on

monetary liabilities) in financial

expenses.

Petitioners argue that the

Department’s calculation of Minasligas’

financial expenses was correct. It cites

the final results notice in which the

Department stated:

[A]lmost all of Minasligas’ reported

‘‘interest income’’ consists of items that are

totally unrelated to interest income. The

financial statements for Minasligas and its

parent, Delp Engenharia Mecanica S.A.

(Delp), demonstrate that over 95 percent of

both companies’ reported ‘‘interest income’’

consists of ‘‘monetary variation,’’ ‘‘monetary

correction,’’ and ‘‘income from short-term

applications.’’ The Department’s verification

report for Minasligas in the immediately

preceding review clarifies that ‘‘financial

applications’’ (which would include ‘‘income

from short-term applications’’) refers to

compensation for inflation. At no point has

Minasligas demonstrated for the record that

the amounts reported for these categories of

income constitute interest income derived

from short-term investments of working

capital. Nor has Minasligas demonstrated

that the claimed interest income was derived

from short-term investments of working

capital merely by stating in its rebuttal brief

that its net interest income exceeded its net

interest expense.

Similarly, the financial statements

submitted by Minasligas show that the

category ‘‘interest received’’ included inter

alia, (1) charges paid by customers for Delp’s

granting of delayed payment terms, which

are really sales revenue; (2) discounts

obtained from suppliers; (3) dividends

received; and (4) exchange gains or losses.

See Minasligas’ April 30, 1996 SQR at 37 and

exhibit 19. These items clearly do not

represent interest income from short-term

investments.

For the above reasons, we have reduced

Minasligas’ interest income by the total

amount of the items incorrectly included

therein by Minasligas (see Final Analysis

Memorandum from Fred Baker to the File).

See Fourth Review Final Results, at

1974. Based on the analysis in the final

results, petitioners argue that the

Department’s calculation of Minasligas’

interest expense was neither a

ministerial nor a non-ministerial error.

Department’s Position: As petitioners

have noted, we addressed this issue in

the final results of the fourth review.

Our treatment of Minasligas’ financial

income was intentional, and not a

ministerial error. The disagreement

Minasligas has expressed is in regard to

our analysis, and is thus not a proper

subject for review under the ministerial

errors correction process.

Comment 2

Minasligas argues that the Department

made a ministerial error in its

revaluation of Minasligas’ beginning

inventory. The Department, based on

Minasligas’ October 15, 1996

submission, revalued Minasligas’

beginning inventory in order to account

for hyperinflation that occurred prior to

the start of the period of review (POR).

The raw material costs Minasligas

reported in its October 15, 1996

submission, it argues, were its inventory

of both ferrosilicon and silicon metal.

Minasligas states that the Department

did not request that Minasligas report

silicon metal inventory separately, nor

could Minasligas have done so because

it does not maintain separate inventory

records. Minasligas argues that the

Department mistakenly overstated the

adjustment to the reported silicon metal

costs by calculating an inflation

adjustment on raw materials for the

entire company, and applying the

additional costs entirely to silicon

metal, rather than proportionately to

subject and non-subject merchandise.

Petitioners argue that there is no

evidence on the record, and Minasligas

has cited to none, to support Minasligas’

claim. For this reason, petitioners argue,
Federal Register / Vol. 62, No. 200 / Friday, October 17, 1997 / Notices 54089

the Department should reject

Minasligas’ argument. Furthermore,

petitioners point out that in its April 30,

1996 supplemental questionnaire

response, Minasligas stated that it

maintains separate inventories for

charcoal. Thus, petitioners argue,

Minasligas’ argument that it does not

maintain separate inventory records for

its raw materials is contradicted by

other information on the record, at least

with respect to charcoal.

Department’s Position: We agree with

both parties in part. We agree with

Minasligas that the revalued costs

should be allocated to silicon metal so

that ferrosilicon costs are not attributed

to silicon metal, and that it would be an

error not to perform an allocation where

one is warranted. However, we agree

with petitioners that Minasligas has

cited to no evidence on the record that

the inventory volumes and values

Minasligas reported in its October 15,

1996 submission were its entire

inventory of raw materials used in the

production of both ferrosilicon and

silicon metal. Our review of the record

indicates that the figures for charcoal

Minasligas’ reported in its October 15,

1996 submission reflects its entire

inventory for charcoal, but the figures it

reported in its October 15, 1996

submission for woodchips, quartz, and

carbon electrodes reflects only the

inventory used in the production of

silicon metal. We made this

determination based on the value of

material inputs Minasligas reported in

tab 8 of its April 30, 1996 submission

(where Minasligas reported the value of

its inputs for silicon metal), as

compared to the material input values

Minasligas reported in its October 15,

1996 submission, which Minasligas now

alleges reflects its entire inventory of the

four inputs. These two exhibits

demonstrate that the cost figures

Minasligas reported for woodchips,

quartz, and carbon electrodes in the

production of silicon metal in tab 8 of

its April 30, 1996 submission are

identical to those it reported in its

October 15, 1996 submission. However,

such is not the case for charcoal.

Furthermore, other evidence on the

record indicates that the consumption

volume figures Minasligas reported for

charcoal were used in the production of

silicon metal and ferrosilicon (see tab 18

(exhibit 36c) of its April 30, 1996

submission). Therefore in these

amended final results, we have

performed an allocation of the revalued

costs only for charcoal. We performed

the allocation based on the volume of

charcoal consumed in the production of

silicon metal relative to the volume of

charcoal consumed in the production of

ferrosilicon. See the amended final

results analysis memorandum for our

calculations.

Comment 3

Minasligas argues that the Department

made a ministerial error by doublecounting packing costs in COP/CV. It

argues that the Department added

packing costs to a COP which already

included packing costs. It argues that

the Department failed to deduct homemarket packing costs from the cost of

manufacture (COM) before adding U.S.

packing costs in calculating CV.

Petitioners argue that information on

the record indicates that the Department

double-counted only the labor and

machine costs for packing, and not the

cost of packing materials. Department’s

Position: We agree with petitioners that

we double-counted only the labor and

machine costs for packing, and not the

material costs. In these amended final

results of review we have revised our

calculations of COP and CV so as not to

double-count labor and machine costs.

See the amended final results analysis

memorandum for our calculations.

Comment 4

Minasligas argues the Department

made three errors in calculating profit

for CV. The first alleged error was that

the Department based profit on

Minasligas’ financial statement data,

rather than on the actual profit

calculated on above-cost sales of subject

merchandise. Minasligas argues that this

was an error because the statute directs

the Department to add to CV the ‘‘actual

amounts incurred and realized by the

specific exporter or producer being

examined in the investigation or review

for selling, general, and administrative

expenses, and for profits, in connection

with the production and sale of a

foreign like product, in the ordinary

course of trade for consumption in the

foreign country* * *’’ 19 U.S.

1677b(e)(2)(A). Based on this statutory

language, Minasligas argues that the

Department is required to calculate

profit based on above-cost sales

wherever possible.

Furthermore, Minasligas argues that

in calculating profit based on above-cost

sales, the Department erred by limiting

the calculation to only the sales of

regular grade silicon metal. Rather,

Minasligas argues, the Department

should have included sales of both

regular and high-purity grade silicon

metal even if all the U.S. sales to be

compared to CV are regular-grade

silicon metal. Minasligas contends that

the Department has in the past based

profits on the entire foreign like

product, and not on a subset of the

subject merchandise. In support of this

contention, it cites Antifriction Bearings

(Other than Tapered Roller Bearings)

and Parts Thereof from France,

Germany, Italy, Japan, Singapore, and

the United Kingdom; Final Results of

Antidumping Duty Administrative

Reviews, 62 F.R. 2081, 2112–2114

(January 15, 1997), where the

Department rejected a respondent’s

argument that where there are no

appropriate identical or family matches

(and hence the Department uses CV),

there are no sales of ‘‘a foreign like

product’’ to calculate a profit margin. In

further support of this contention,

Minasligas cites Professional Electric

Cutting Tools from Japan; Final Results

of Antidumping Duty Administrative

Review, 62 F.R. 386, 389–390 (January 3,

1997), in which the Department stated,

‘‘For purposes of calculating CV and

CEP profit, we interpret the term

‘foreign like product’ to be inclusive of

all merchandise sold in the home

market which is in the same general

class or kind of merchandise as that

under consideration,’’ and Notice of

Final Determination of Sales at Less

than Fair Value: Large Newspaper

Printing Presses and Components

Thereof, Whether Assembled or

Unassembled, from Japan, 61 F.R.

38139, 38145–38147 (July 23, 1996), in

which the Department stated,

‘‘[Respondent] is incorrect to suppose

that because we did not find homemarket sales which provided practicable

price-to-price matches, no foreign like

product existed. The foreign like

product . . . did exist, as revealed by

our examination of . . . equipment sold

in the home market for purposes of the

Department’s home-market viability

test.’’

The second alleged error the

Department made was using an

allegedly incorrect total profit figure to

calculate Minasligas’ profit ratio. In

calculating the total profit figure, the

Department included the line item for

interest income found on Minasligas’

1994 financial statement. Minasligas

argues that it was an error for the

Department to reject the line item for

interest income as an offset to financial

expenses (presumably because it was

unrelated to production of the foreign

like product ) but to include it in the

calculation of profit. It argues that if the

interest income is unrelated to

production then it cannot be used for

the purpose of calculating CV.

The third alleged error that the

Department made was its failure to

apply the profit cap required by the

statute. Minasligas argues that the
54090 Federal Register / Vol. 62, No. 200 / Friday, October 17, 1997 / Notices

statute allows profit to be calculated in

one of three ways:

(i) the actual amounts incurred and

realized by the specific producer for

profits, in connection with the

production and sale for consumption in

the foreign country, of merchandise that

is in the same general category of

products as the subject merchandise;

(ii) the weighted average of the actual

amounts incurred and realized by

producers that are subject to the review

for profits in connection with the

production and sale of a foreign like

product, in the ordinary course of trade,

for consumption in the foreign country;

or

(iii) the amounts incurred for profits

based on any other reasonable method,

except that the amount allowed for

profit may not exceed the amount

normally realized by exporters or

producers in connection with the sale,

for consumption in the foreign country,

of merchandise that is in the same

general category of products as the

subject merchandise.

See 19 U.S.C. 1677b(e)(2)(B). Minasligas

argues that the Department’s method of

calculating profit does not comport with

either items (i) or (ii), and therefore

must have been (iii). Thus, Minasligas

argues, the statutory profit cap applies,

but the amount the Department

calculated for profit exceeded this cap

because it exceeded the amount

normally realized by other exporters or

producers.

Petitioners retort that the Department

did not make an error in the calculation

of Minasligas’ profit. First, they contend

that the statute requires not that sales of

subject merchandise be used in the

calculation of profit (as Minasligas

claims), but that actual amounts for

profits ‘‘in connection with the

production and sale of a foreign like

product’’ be used. See 19 U.S.C.

1677(16). Second, petitioners argue that

the Department’s regulations define the

term ‘‘ministerial error’’ as ‘‘an error in

addition, subtraction, or other

arithmetic function, clerical error

resulting from inaccurate copying,

duplication or the like, and any other

type of unintentional error which the

Secretary considers ministerial.’’ Based

on this definition, petitioners argue that

the Department’s calculation of profit

was not a ministerial error. Indeed,

petitioners argue, the Department’s

analysis memorandum demonstrates

that it acted intentionally when it

calculated profit as it did. Third,

petitioners argue that the Department

does not have on the record of the

review the information necessary to

calculate a profit cap in accordance with

the statute. Thus, petitioners argue, the

Department properly calculated

Minasligas’ profit on a facts-available

basis because the Statement of

Administrative Action states that the

Department may do so under such

circumstances.

Department’s Position: We agree with

petitioners that our calculation of profit

did not constitute a clerical error. Our

calculation of profit used in the

programming is identical to that

described in the final results analysis

memorandum for Minasligas. See the

January 24, 1997 analysis memorandum,

pp. 4 and 5.

Comment 5

Minasligas argues that the Department

erred in its calculation of CV by

calculating general and administrative

expenses (G&A), profit, and financial

expense ratios as a percentage of cost of

goods sold (which does not include

value-added taxes) and applying these

ratios to a COM which includes valueadded taxes. It argues that since the

value-added taxes are not reflected

anywhere as a cost on Minasligas’

audited financial statements, it would

be inappropriate to calculate a G&A,

profit, or financial expense ratio from its

financial statements and then apply the

ratio to a COM which includes valueadded taxes. Similarly, RIMA and

Eletrosilex argue that the Department

erred in its calculation of CV by

calculating G&A and financial expense

ratios as a percentage of cost of goods

sold (COGS) from their 1994 financial

statements (which do not include valueadded taxes and depreciation expenses)

and applying them to a COM which

does include value-added taxes and

depreciation expenses. RIMA also

argues that the Department erred in its

calculation of financial expenses by

calculating a ratio which includes late

payment fees, and applying it to a COM

which also includes late payment fees.

By so doing, RIMA argues, the

Department double-counted late

payment fees.

Furthermore, Minasligas argues that

the Department’s calculation of CV was

inconsistent with the statute because the

G&A and interest expense values used

in CV are different from those used in

COP. Minasligas argues that because 19

U.S.C. § 1677b(e)(2)(A) requires the

Department to base selling, general, and

administrative expenses on the actual

amounts incurred and realized in

production of the foreign like product,

and because the actual amount of G&A

and interest does not differ for the

product between CV and COP, the

Department’s method was a violation of

the statute.

Petitioners argue, with respect to

Eletrosilex, that the Department made

no error in its calculations. It argues that

the Department did not, contrary to

Eletrosilex’s claims, calculate its G&A

ratio from Eletrosilex’s financial

statements. Instead, petitioners state, the

Department used the monthly G&A

expenses that Eletrosilex reported in

exhibit 36 of its October 20, 1995

questionnaire response. With respect to

Eletrosilex’s financial expenses,

petitioners argue that the COM does not

include the depreciation that the

Department calculated, nor does it

include the ICMS tax (a value-added

tax).

Department’s Position: We agree with

respondents that where the COGS

recorded on the financial statements do

not include value-added taxes or

depreciation, the COM values used to

calculate profit, G&A, and interest for

CV should be net of value-added taxes

or depreciation in order to avoid

overstating these expenses. Therefore, in

these amended final results of review,

we have calculated CV using G&A,

profit, and interest expense figures for

Minasligas and RIMA based on a COM

that is net of value-added taxes and (for

RIMA) net of depreciation. We also

agree with RIMA that because late

payment fees were included in the

financial expenses reported on its

financial statement, we would double

count late payment fees by including

them in the COM used to calculate

interest expenses. Therefore, in these

amended final results, we have removed

the late payment fees from the financial

expenses in calculating RIMA’s

financial expense ratio.

With respect to Eletrosilex, we agree

with petitioners that, in the final results,

we did not include all value-added

taxes in the COM used to calculate

Eletrosilex’s interest expenses for CV.

(We included only the IPI, and not the

ICMS.) Therefore, in these amended

final results of review, we have removed

the IPI from the COM used to calculate

interest. Furthermore, we also agree

with petitioners that we did not

calculate Eletrosilex’s G&A from its

financial statement, but instead used the

monthly G&A figures it submitted in

exhibit 36 of its October 20, 1995

questionnaire response. However, we

disagree with petitioners that the COM

we used to calculate Eletrosilex’s

interest was net of depreciation.

Therefore in these amended final

results, we have calculated Eletrosilex’s

interest using a COM that is net of

depreciation.
Federal Register / Vol. 62, No. 200 / Friday, October 17, 1997 / Notices 54091

Comment 6

Minasligas and RIMA argue that the

Department made a clerical error in the

calculation of CV by increasing normal

value (NV) by the amount of U.S.

imputed credit expenses, but not

reducing NV by the amount of imputed

home-market credit expenses. They

argue that the Department should

subtract imputed home-market credit

from NV.

Petitioners argue that the Department

was correct in not subtracting homemarket credit from NV. They argue that

the Department’s practice is to include

only actual, not imputed, expenses in

CV. Therefore, petitioners say, because

the Department did not include homemarket imputed credit expenses in CV,

it would have been wrong to subtract

home-market imputed credit expenses

from CV when making the

circumstance-of-sale adjustment for

imputed credit.

Department’s Position: We agree with

respondents that our failure to subtract

imputed credit from the calculation of

CV constituted a ministerial error. It is

our practice to make a circumstance-ofsale adjustment for differences in credit

costs between the home and U.S.

markets even in a CV margin

calculation. Hence, we have done so in

these amended final results.

Comment 7

Minasligas argues that the Department

erred in its computation of net homemarket price and home-market credit by

including in the computation the

addition of a variable representing the

PIS/COFINS taxes. The Department

included this variable in the

preliminary results of review, but its

final results analysis memorandum

indicates that the Department intended

to delete it for the final results.

Minasligas argues that the Department

did not do so.

Department’s Position: We agree, and

have corrected this error in these

amended final results.

Comment 8

Minasligas, RIMA, and Eletrosilex

argue that the Department erred by

failing to deduct from CV the difference

between the ICMS tax due on homemarket sales and on U.S. sales. To

support their argument, Minasligas,

RIMA, and Eletrosilex cite the

Department as stating in the final

results: ‘‘In order to achieve tax

neutrality with respect to the ICMS tax

we should deduct from NV only the

amount of the difference between ICMS

tax due on home-market sales and ICMS

tax due on U.S. sales.’’ See Fourth

Review Final Results at 1983.

Furthermore, Minasligas, RIMA, and

Eletrosilex argue that the Department

has in the past stated that its practice is

to make circumstance-of-sale

adjustments in price-to-CV as well as

price-to-price margin calculations. See

Tapered Roller Bearings and Parts

Thereof Finished or Unfinished from

Japan, 52 FR 30700 (August 17, 1987).

Petitioners argue that the language

cited by Minasligas, RIMA, and

Eletrosilex applies only to price-to-price

comparisons, and not price-to-CV

comparisons. Petitioners argue that the

correct interpretation of the

Department’s statement cited by

Minasligas is governed by another

statement the Department made in the

same context: ‘‘This approach is in

accordance with 19 U.S.C.

§ 1677b(a)(6)(B)(iii).’’ This section of the

statute, petitioners argue, refers to price,

and not CV. It states that ‘‘the price

described in paragraph (1)(B) shall be

* * *reduced by* * * the amount of

any taxes imposed directly upon the

foreign like product or components

thereof which have been rebated, or

which have not been collected, on the

subject merchandise, but only to the

extent that such taxes are added to or

included in the price of the foreign-like

product.’’

Department’s Position: We disagree

with respondents that our treatment of

ICMS taxes in a CV situation constitutes

a ministerial error. We intended to treat

ICMS taxes in a CV situation exactly as

we did in the final results. Therefore,

this issue is a methodological issue, and

not a proper subject for review under

the ministerial errors correction process.

Comment 9

Minasligas, RIMA, and Eletrosilex

argue that the Department made a

clerical error in calculating U.S.

imputed credit by dividing the annual

interest rate by 30 rather than 365.

Department’s Position: We agree, and

have corrected this error in these

amended final results.

Comment 10

RIMA argues that the Department

incorrectly calculated depreciation. In

the final results, the Department stated

that it based its calculation of RIMA’s

depreciation on facts available, and

explained:

As facts available the Department has

chosen to use one-half of the audited total

RIMA depreciation expenses for the fiscal

year as RIMA’s total POR depreciation

expenses, and to allocate to silicon metal

production a share of that total based on the

highest monthly percentage of cost of goods

sold accounted for by silicon metal, as

appearing in verification exhibit OH1. We

allocated one-twelfth of this total, in turn, to

each month of the POR.

See Fourth Review Final Results, at

1984. RIMA argues that the Department

failed to divide the total depreciation by

two as is necessary if the calculated

amount is to be ‘‘one-half of the audited

total RIMA depreciation expenses for

the fiscal year,’’ as described above.

Petitioners argue that the

Department’s calculations, as laid out in

the January 24, 1997 final results

analysis memorandum, indicate that the

Department did in fact divide total

depreciation by two.

Department’s Position: We agree with

petitioners. The attachment labeled

‘‘Calculation of RIMA’s Depreciation—

4th Review’’ in the final results analysis

memorandum for RIMA indicates that

the Department did divide the

depreciation expenses in half. Thus, we

did not make a clerical error.

Comment 11

Petitioners argue that the Department

made a clerical error in its calculations

for Eletrosilex by failing to add U.S.

imputed credit expenses to CV.

Department’s Position: We agree, and

have corrected this error in these

amended final results.

Comment 12

Petitioners argue the Department

made a clerical error in its calculations

for Eletrosilex by adding U.S. post-sale

warehousing expenses expressed in

Brazilian currency to a CV expressed in

U.S. dollars.

Department’s Position: We agree, and

have corrected this error in these

amended final results.

Comment 13

Petitioners argue that the Department

made a clerical error in its calculations

for CBCC by adding, rather than

subtracting, international freight from

United States Price (USP).

Department’s Position: We agree, and

have corrected this error in these

amended final results.

Comment 14

Petitioners argue that the Department

made a clerical error in its calculations

for CBCC by treating the bank charges

incurred to finance some of CBCC’s U.S.

sales as expressed in U.S. dollars, rather

than in Brazilian currency.

Department’s Position: We agree, and

have corrected this error in these

amended final results.

Comment 15

Petitioners argue that the Department

made a clerical error in its calculations
54092 Federal Register / Vol. 62, No. 200 / Friday, October 17, 1997 / Notices

of USP for some of CBCC’s U.S. sales by

including in the computer field

‘‘BANKCHRG’’ only the cost of interest,

and not the cost of bank charges.

Department’s Position: We agree, and

have corrected this error in these

amended final results.

Comment 16

Petitioners argue that the Department

made a clerical error in its calculations

for CBCC by failing to include the

depreciation expenses for all of CBCC’s

idle furnaces for all months of the POR.

This was an error, petitioners state,

because the final results notice says that

the Department included depreciation

expenses for idle assets in the total

depreciation expenses. See Fourth

Review Final Results, at 1980.

CBCC argues that the Department’s

calculation was proper because during

part of the POR the furnaces in question

were producing a product other than

silicon metal. For the same reason CBCC

argues further that if the Department

decides to attribute depreciation for the

furnaces at issue to silicon metal, it

should attribute only part of it to silicon

metal, and not all of it, as petitioners

argue.

Department’s Position: We agree with

petitioners that for some months of the

POR we failed to include depreciation

for idle assets in total depreciation,

which was a clerical error. We have

corrected this error in these amended

final results. We have allocated to the

furnaces at issue a proportion of

depreciation expenses equal to the

volume of silicon metal produced by

those furnaces relative to the volume of

other products produced by those

furnaces during the POR. See the

amended final results analysis

memorandum for our calculations.

Comment 17

Petitioners argue that the Department

made a clerical error calculating

Minasligas’ variable overhead expenses.

The Department, in order to allocate

overhead costs to silicon metal, applied

a ratio to Minasligas’ total variable

overhead amounts as given in exhibit 4

of Minasligas’ October 15, 1996

supplemental questionnaire response.

Petitioners argue that this was an error

because the total variable overhead

reported in exhibit 4 had already been

allocated to silicon metal by Minasligas.

Department’s Position: We agree, and

have corrected this error in these

amended final results.

Comment 18

Petitioners argue that the Department

made a clerical error by not basing

RIMA’s charcoal costs on the price

RIMA paid to its unaffiliated suppliers,

and instead using the material costs

RIMA reported in verification exhibit 7.

In the final results the Department

stated that it would base RIMA’s

charcoal costs on the prices it pays to its

unaffiliated suppliers. See Fourth

Review Final Results, at 1985.

RIMA argues that the costs reported in

verification exhibit 7 are from

unaffiliated suppliers, and that the

Department therefore did not make a

clerical error.

Department’s Position: We agree with

RIMA. The verification report says, ‘‘By

reviewing the documents pertaining to

purchased charcoal, e.g., the general

ledger, supplier’s invoices, and payment

records, we confirmed that Rima’s perunit costs were based on the purchase

price from third-party suppliers.’’ See

October 3, 1996 verification report, p.

12. Thus, our use of the charcoal costs

contained in verification exhibit 7 does

not constitute a clerical error.

Comment 19

Petitioners argue that the Department

made a clerical error in its calculation

of RIMA’s imputed U.S. credit expenses.

RIMA shipped each of its U.S. sales

from its plant to the port of export in

lots over a period of days, and reported

to the Department the date of shipment

for each lot. The Department stated in

its final results analysis memorandum

for RIMA that it used as the credit

period the average number of days

between the shipment date for each lot

and the payment date. However,

petitioners argue that the Department

did not use the average credit period.

RIMA argues that the Department

used an annual rate, and not a monthly

rate, in its calculation of U.S. imputed

credit expenses. Thus, RIMA argues, the

Department should divide the rate used

in the determination of imputed credit

by 365 days, not 30 days.

Department’s Position: We agree with

petitioners that we did not use the

average credit periods in the calculation

of U.S. credit, although the final results

analysis memorandum states the

contrary. See July 24, 1997 RIMA final

results analysis memorandum, p. 3. We

have corrected this error in these

amended final results. For our response

to RIMA’s argument that we should

calculate credit using a denominator of

365, see our response to comment 9,

above.

Comment 20

Eletrosilex argues that the Department

made a ministerial error in its treatment

of depreciation expenses. Eletrosilex

argues that it explained in its

submission that it had taken no

depreciation in 1994 in order to

compensate, as necessary under

Brazilian accounting principles, for

having taken accelerated depreciation in

prior years, and that it had returned to

normal depreciation in 1995. In

comment 36 of the final results notice,

the Department stated that evidence

from Eletrosilex’s financial statement

indicates that its accounting of

depreciation was not in accordance with

Brazilian generally accepted accounting

principles (GAAP). The Department

therefore used the depreciation

estimates given by Eletrosilex’s

independent auditor. Eletrosilex

contends that the Department’s

determination that its accounting of

depreciation was not in accordance with

Brazilian GAAP constitutes a ministerial

error. It argues that the financial

statement made no determination as to

whether Eletrosilex’s accounting for

depreciation was consistent with

Brazilian GAAP in light of the earlier

accelerated depreciation; it merely

reflected the current year accounting.

Eletrosilex argues that the Department

mistakenly relied upon the financial

statement out of context, instead of

relying upon the actual data submitted

by Eletrosilex and the explanation as to

why no depreciation expense was

shown for 1994.

Furthermore, Eletrosilex argues that

the Department’s recalculation of

depreciation was flawed by exaggerating

depreciation expense. The Department

used one half of the audited

depreciation expenses for all of 1994

and 1995. Eletrosilex argues that this

method was doubly mistaken. First, the

Department used numbers from the

column designated as ‘‘in currency with

constant purchase power.’’ Eletrosilex

states that this column includes

monetary adjustment, and therefore

inflates the true number. Second, it

double counts depreciation for 1995

because the depreciation expense is

already included in fixed overhead.

Petitioners argue that the Department

correctly determined that Eletrosilex’s

accounting of depreciation was not in

accordance with Brazilian GAAP. It

bases this argument on a statement

contained in the report of the

independent auditor which says that

‘‘the company did not recognize . . .

amounts corresponding to the

depreciation of the fixed assets as

required by the accounting principles

foreseen in the CORPORATE’S

LEGISLATION and by the main

accounting principles.’’ Therefore,

petitioners argue, the Department was

correct in not using the depreciation

expenses that Eletrosilex reported to the

Department.
Federal Register / Vol. 62, No. 200 / Friday, October 17, 1997 / Notices 54093

Furthermore, petitioners argue that

because Eletrosilex’s 1994 financial

statement did not contain any

information about depreciation, the

Department was obliged to use

Eletrosilex’s 1995 financial statement

for information about Eletrosilex’s

depreciation for both 1994 and 1995.

Thus, petitioners argue, the Department

was justified in using the column ‘‘in

currency with constant purchase

power’’ for 1994 because that is how the

information was presented in

Eletrosilex’s 1995 financial statement.

Finally, petitioners argue that

information on the record indicates that

the Department did not double count

depreciation for all of the months that

Eletrosilex claims it did.

Department’s Position: We disagree

with Eletrosilex that our calculation of

depreciation is a clerical error. Rather,

it is a methodological issue, and not a

proper subject for review under the

ministerial errors correction process.

However, we do agree with Eletrosilex

that we double counted depreciation for

1995. Therefore, in these amended final

results of review we have corrected this

error. See our amended final results

analysis memorandum for our

calculations.

Comment 21

Eletrosilex argues that the Department

mistakenly disallowed an alleged shortterm investment as an offset to its

financial expenses because it incorrectly

believed the claimed offset to be a

capital gain. Eletrosilex argues that there

is no basis for the Department so to

interpret the transaction. It states that

the claimed offset at issue was interest

income accrued from bonds purchased

as a short-term investment. The

treatment of this short-term investment

creating accrued interest is fully

consistent, Eletrosilex argues, with the

Department’s traditional treatment of

short-term interest as an offset to

financial expenses, and the

Department’s treatment otherwise in the

final results was based on a mistaken

interpretation of the claim.

Petitioners argue that the Department

made no ministerial error in its

calculation of Eletrosilex’s financial

expenses. They argue that it is a

respondent’s responsibility to provide a

detailed explanation of any claimed

offset to expenses, and that Eletrosilex

failed to meet this responsibility

because it failed to provide the

information necessary to distinguish

interest income from capital gains.

Furthermore, petitioners argue that the

Department acted intentionally in

denying this adjustment. Indeed, the

Department specifically addressed the

transaction in question in comment 5 of

the final results notice. See Fourth

Review Final Results, at 1974. Thus,

petitioners argue, the Department’s

denial of this adjustment does not fit the

regulatory definition of a clerical error,

which is ‘‘an error in addition,

subtraction, or other arithmetic

function, clerical error resulting from

inaccurate copying, duplication, or the

like, and any other type of unintentional

error which the Secretary considers

ministerial.’’ 19 C.F.R. 353.28(d).

Department’s Position: We agree with

petitioners that our denial of this

requested offset is not a clerical error.

As reflected in the fourth review final

results notice, we intended to deny this

adjustment. See Fourth Review Final

Results at 1974.

Comment 22

Eletrosilex argues that the Department

erred by failing to grant a duty drawback

adjustment. In the final results the

Department denied this adjustment

because Eletrosilex did not submit a

claim for it until it submitted its case

brief, subsequent to the 180-day

regulatory deadline for submitting

factual information. See 19 CFR

§ 353.31(a)(1)(ii). Eletrosilex argues that

this decision unfairly distorted reality

for no valid reason. It argues that the

Department recognizes that mistakes

occur, and has established the

‘‘ministerial error’’ provision for the

purpose of correcting its own mistakes.

Therefore, Eletrosilex argues, parties to

proceedings should also be permitted to

correct their mistakes where there is no

prejudice or detriment to any of the

parties. The oversight in question,

Eletrosilex states, was just such an error.

The Department’s failure to correct the

error, Eletrosilex argues, is an overly

narrow interpretation which serves no

purpose other than to punish Eletrosilex

and increase a dumping margin for U.S.

importers.

Petitioners argue that the Department

made no ministerial error in denying

Eletrosilex a duty drawback adjustment.

The regulatory definition of ‘‘ministerial

error’’ is ‘‘an error in addition,

subtraction, or other arithmetic

function, clerical error resulting from

inaccurate copying, duplication or the

like, and any other type of unintentional

error which the Secretary considers

ministerial.’’ See 19 CFR § 353.28(d).

Furthermore, petitioners argue that the

Department specifically addressed this

issue in the final results. See Fourth

Review Final Results, at 1988. Therefore,

petitioners argue, the Department’s

denial of this adjustment was not a

ministerial error.

Department’s Position: We agree with

petitioners that our denial of a duty

drawback adjustment was not a

ministerial error. It is a methodological

issue, and not a proper subject for

review under the ministerial errors

correction process.

Comment 23

Eletrosilex argues that the Department

used an incorrect amount for U.S.

packing expenses. The final results

analysis memorandum states that it

used the packing expense that

Eletrosilex submitted on its U.S. sales

file. Eletrosilex argues that in the

computer program the Department used

a different amount.

Petitioners argue that the Department

used the amount for packing that

appears on Eletrosilex’s U.S. sales file,

and that therefore the Department did

not make an error.

Department’s Position: We disagree

with Eletrosilex that we used the

incorrect packing amount. See line 3805

of the final results program. We

acknowledge, however, that our final

results analysis memorandum

incorrectly states that we used the figure

that Eletrosilex submitted on its U.S.

sales file. In the preliminary results, we

recalculated Eletrosilex’s packing figure

based on the itemized packing costs

Eletrosilex submitted because the figure

it reported on its sales tape differed

from the figure it reported in the

narrative section of its questionnaire

response. For our recalculations, see the

September 3, 1996 Eletrosilex

preliminary results analysis

memorandum, p. 2. Thus, in neither the

preliminary nor final results of review

did we use the packing figure

Eletrosilex submitted on its U.S. sales

file, nor did we intend to do so. (In their

comments on the preliminary results no

party commented on the recalculation of

packing.)

In addition to the changes made in the

margin calculations in response to the

above comments, we have also made the

following changes to the programming

in these amended final results:

• For Minasligas and Eletrosilex, we

calculated U.S. imputed credit net of the

ICMS tax assessed on the U.S. sale; and,

• For Eletrosilex, we used as the unit

price of the U.S. sale the CIF value of

the sale in U.S. dollars as given in

exhibit 19 of Eletrosilex’s October 25,

1995 submission.

Amended Final Results

As a result of our review, we have

determined that the following margins

exist for the period July 1, 1994 through

June 30, 1995:
54094 Federal Register / Vol. 62, No. 200 / Friday, October 17, 1997 / Notices

Producer/manufacturer/exporter

Weightedaverage

margin (percent)

CBCC ........................................ 0.37

CCM .......................................... 35.23

Eletrosilex ................................. 6.68

Minasligas ................................. 43.53

RIMA ......................................... 51.23

The Department shall determine, and

the U. S. Customs Service shall assess,

antidumping duties on all appropriate

entries. The Department shall issue

appraisement instructions directly to

the Customs Service.

Furthermore, the following deposit

requirements shall be effective upon

publication of this notice of amended

final results of review for all shipments

of silicon metal from Brazil entered, or

withdrawn from warehouse, for

consumption on or after the publication

date, as provided for by section

751(a)(1) of the Act: (1) the cash deposit

rates for the reviewed companies named

above will be the rates published in

these amended final results; (2) for

previously investigated or reviewed

companies not listed above, the cash

deposit rate will continue to be the

company-specific rate published for the

most recent period; (3) if the exporter is

not a firm covered in these reviews, or

the original less-than-fair-value (LTFV)

investigations, but the manufacturer is,

the cash deposit rate will be the rate

established for the most recent period

for the manufacturer of the

merchandise; and (4) if neither the

exporter nor the manufacturer is a firm

covered in these reviews, the cash

deposit rate will continue to be 91.06

percent, the ‘‘all others’’ rate established

in the LTFV investigation. See Final

Determination of Sales at Less Than

Fair Value: Silicon Metal from Brazil, 56

FR 26977 (June 12, 1991).

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 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 section 353.34(d) of the

Department’s regulations. Timely

notification of 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.

These amended final results of review

and notice are in accordance with

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

§ 1675(a)(1)) and section 353.28(c) of the

Department’s regulations.

Dated: October 14, 1997.

Robert S. LaRussa,

Assistant Secretary for Import

Administration.

[FR Doc. 97–27632 Filed 10–16–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–351–806]

Silicon Metal From Brazil; Amended

Final Results of Antidumping Duty

Administrative Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Amended final results of

antidumping duty administrative

review.

SUMMARY: The Department of Commerce

(the Department) is amending its final

results of review, published on January

14, 1997, of the antidumping duty order

on silicon metal from Brazil, to reflect

the correction of ministerial errors in

those final results. These amended final

results are for the review covering the

period July 1, 1993 through June 30,

1994.

EFFECTIVE DATE: October 17, 1997.

FOR FURTHER INFORMATION CONTACT: Fred

Baker, Alain Letort, or John Kugelman,

AD/CVD Enforcement Group III—Office

8, Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, N.W.,

Washington, D.C. 20230, telephone 202/

482–2924 (Baker), 202/482–4243

(Letort), or 202/482–0649 (Kugelman),

fax 202/482–1388.

SUPPLEMENTARY INFORMATION:

Applicable Statute and Regulations

Unless otherwise indicated, all

citations to the statute and to the

regulations are references to the

provisions as they existed on December

31, 1994.

Background

The Department published the final

results of the third administrative

review of the antidumping duty order

on silicon metal from Brazil on January

14, 1997 (62 FR 1954) (Third Review

Final Results), covering the period July

1, 1993 through June 30, 1994. The

respondents are Companhia Brasileira

Carbureto de Ca ́lcio (CBCC), Companhia

Ferroligas Minas Gerais—Minasligas

(Minasligas), Eletrosilex Belo Horizonte

(Eletrosilex), Rima Industrial S.A.

(RIMA), and Camargo Corre ̃a Metais

(CCM). The petitioners are American

Alloys, Inc., Elken Metals, Co., Globe

Metallurgical, Inc., SMI Group, and

SKW Metals & Alloys.

On February 12, 1997, the petitioners

filed clerical error allegations with

respect to CCM and Minasligas. The

same day we received clerical error

allegations from respondent CCM. On

February 18, 1997, we received rebuttal

comments from the petitioners

regarding CCM’s clerical error

allegations. Pursuant to the CIT’s order,

we are now addressing the ministerial

allegations and amending our final

results of the third review. See

American Silicon Technologies et al., v.

United States, Slip Op. 97–114, August

18, 1997.

Scope of Review

The merchandise covered by this

review is silicon metal from Brazil

containing at least 96.00 percent but less

than 99.99 percent silicon by weight.

Also covered by this review is silicon

metal from Brazil containing between

89.00 and 96.00 percent silicon by

weight but which contains a higher

aluminum content than the silicon

metal containing at least 96.00 percent

but less than 99.99 percent silicon by

weight. Silicon metal is currently

provided for under subheadings

2804.69.10 and 2804.50 of the

Harmonized Tariff Schedule (HTS) as a

chemical product, but is commonly

referred to as a metal. Semiconductor

grade silicon (silicon metal containing

by weight not less than 99.99 percent

silicon and provided for in subheading

2804.61.00 of the HTS) is not subject to

the order. HTS item numbers are

provided for convenience and for U.S.

Customs purposes. The written

description remains dispositive as to the

scope of product coverage.

Clerical Error Allegations

Comment 1

CCM argues that the Department erred

in its calculation of its U.S. imputed

credit expenses in three ways. First, it

argues that the Department should have