[Federal Register Volume 62, Number 201 (Friday, October 17, 1997)]
[Notices]
[Pages 54087-54094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27632]


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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.

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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, 14<SUP>th</SUP> 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 Calcio (CBCC), 
Companhia Ferroligas Minas Gerais-Minasligas (Minasligas),

[[Page 54088]]

Eletrosilex Belo Horizonte (Eletrosilex), Rima Industrial S.A. (RIMA), 
and Camargo Correa 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,

[[Page 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 
double-counting 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 home-market 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 
home-market 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

[[Page 54090]]

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 value-added 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 value-added 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 value-added 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. Sec. 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.

[[Page 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 home-market 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 home-market 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-of-sale 
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 home-market 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 
home-market 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. Sec. 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--4<SUP>th</SUP> 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

[[Page 54092]]

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 per-unit 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.

[[Page 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 short-term 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 
Sec. 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 Sec. 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:
    <bullet> For Minasligas and Eletrosilex, we calculated U.S. imputed 
credit net of the ICMS tax assessed on the U.S. sale; and,
    <bullet> 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:

[[Page 54094]]



------------------------------------------------------------------------
                                                              Weighted- 
                                                               average  
               Producer/manufacturer/exporter                   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 Sec. 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. Sec. 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