[Federal Register Volume 62, Number 226 (Monday, November 24, 1997)]
[Notices]
[Pages 62547-62559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30834]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration
[A-557-805]


Extruded Rubber Thread From Malaysia; Final Results of 
Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: On February 13, 1997, the Department of Commerce (the 
Department) published in the Federal Register its preliminary results 
of the administrative review of the antidumping duty order on extruded 
rubber thread from Malaysia (62 FR 6758). This review covers Heveafil 
Sdn. Bhd. (``Heveafil''), Rubberflex Sdn. Bhd. (``Rubberflex''), Filati 
Lastex Elastofibre (Malaysia) (``Filati''), Rubfil Sdn. Bhd. 
(``Rubfil'') and Rubber Thread International (Rubber Thread) 
(collectively ``respondents''), manufacturers/exporters of the subject 
merchandise to the United States. The period of review (POR) is October 
1, 1993 through September 30, 1994. We gave interested parties an 
opportunity to comment on our preliminary results.

[[Page 62548]]

Petitioner and respondents submitted case briefs on March 10, 1997 and 
rebuttal briefs on March 17, 1997. No hearing was conducted in this 
review. Therefore, we have based our analysis on the comments received, 
and have changed the results from those presented in the preliminary 
results of review.

EFFECTIVE DATE: November 24, 1997.

FOR FURTHER INFORMATION CONTACT: Laurel LaCivita or James Terpstra, AD/
CVD Enforcement Group II, Office 4, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone 
(202) 482-4740 or (202) 482-3965, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute

    Unless otherwise indicated, all citations to the statute and to the 
Department's regulations are in reference to the provisions as they 
existed on December 31, 1994. We are conducting this administrative 
review in accordance with section 751(a) of the Tariff Act of 1930, as 
amended (the Act).

Background

    On October 7, 1992, the Department published in the Federal 
Register (57 FR 46150) the antidumping duty order on extruded rubber 
thread from Malaysia. In October 1994, the petitioner, North American 
Rubber Thread, and the following respondents requested the Department 
to conduct an antidumping administrative review covering the period 
October 1, 1993 through September 30, 1994: Heveafil Sdn. Bhd. 
(``Heveafil''), Rubberflex Sdn. Bhd. (``Rubberflex''), Filati Lastex 
Elastofibre (Malaysia) (``Filati''), and Rubfil Sdn. Bhd (``Rubfil''). 
In addition, petitioner requested a review of Rubber Thread 
International (Rubber Thread). On November 14, 1994, we published a 
notice of initiation of an administrative review of this order for the 
period October 1, 1993, through September 30, 1994 (59 FR 56459). We 
conducted a verification of Rubberflex in Malaysia from September 23, 
1996 until October 5, 1996, and of its U.S. affiliate in Hickory, North 
Carolina from October 16 to 18, 1996. Our preliminary results of review 
were published in the Federal Register on February 13, 1997 (62 FR 
6758). Petitioner, Heveafil, Filati, Rubfil and Rubberflex filed case 
briefs on March 10, 1997 and rebuttal briefs on March 17, 1997. Rubber 
Thread reported that it made no shipments of the subject merchandise 
during the POR. The Department has now completed this administrative 
review in accordance with section 751(a) of the Act.

Scope of the Review

    The product covered by this review is extruded rubber thread. 
Extruded rubber thread is defined as vulcanized rubber thread obtained 
by extrusion of stable or concentrated natural rubber latex of any 
cross sectional shape, measuring from 0.18 mm, which is 0.007 inch or 
140 gauge, to 1.42 mm, which is 0.056 inch or 18 gauge, in diameter. 
Extruded rubber thread is currently classified under subheading 
4007.00.00 of the Harmonized Tariff Schedule of the United States 
(HTSUS). The HTSUS subheadings are provided for convenience and U.S. 
Customs purposes. Our written description of the scope of this review 
is dispositive.

Analysis of Comments Received

    We gave interested parties an opportunity to comment on the 
preliminary results. We received comments and rebuttal comments from 
North American Rubber Thread (petitioner), and Rubberflex, Rubfil, 
Heveafil and Filati (respondents).

Best Information Available (BIA) for Rubberflex

    We found that responses provided by Rubberflex could not be 
verified within the meaning of section 776(b) of the Act. For a 
significant portion of the cost and expense items reviewed at 
verification, the information provided in the questionnaire responses 
was inaccurate or could not be verified. This includes, but is not 
limited to, information on indirect selling expenses, overhead, 
selling, general and administrative (SG&A) expenses, labor, materials, 
rebates, corporate structure, and the completeness of U.S. sales 
reporting. For numerous items, Rubberflex attempted to present revised 
information at verification. However, Rubberflex failed to disclose the 
numerous errors in its responses prior to, or at the start of, 
verification, as repeatedly requested by the Department. Rather, 
Rubberflex attempted to present its new information in a piecemeal 
manner, often late in the verification. This effectively precluded the 
Department from having adequate time to evaluate the scope and 
magnitude of the changes. Accordingly, we determined that Rubberflex 
failed to demonstrate the completeness and accuracy of its 
questionnaire responses at verification and thus failed verification.
    As discussed in comments 1 through 27 below, we carefully reviewed 
Rubberflex's arguments in light of the February 14, 1997 verification 
report (verification report) and the supporting verification exhibits. 
This analysis reveals that Rubberflex's brief systematically 
mischaracterizes, and seeks to minimize the importance of, all of the 
myriad problems encountered at verification. As described below, and as 
in the preliminary results of review, we find that, pursuant to section 
776(b) of the Act, the errors and problems found at verification render 
Rubberflex's questionnaire responses unusable for purposes of 
calculating a margin.
    Section 776(b) of the Act requires the Department to use the best 
information available (BIA) if it is unable to verify the accuracy of 
the information submitted. In deciding what to use as BIA, the 
Department's regulations provide that the Department may take into 
account whether a party refuses to provide requested information. See 
19 CFR 353.37(b). Thus, the Department may determine the appropriate 
BIA on a case-by-case basis.
    In cases where we have determined to use total BIA, we apply a two 
tier methodology of BIA depending on whether the companies attempted to 
or refused to cooperate in these reviews. See Antifriction Bearings 
(Other Than Tapered Roller Bearings) and Parts Thereof From France, et 
al.; Final Results of Antidumping Duty Administrative Reviews, Partial 
Termination of Administrative Reviews, and Revocation in Part of 
Antidumping Duty Orders, 60 FR 10900 (February 28, 1995). When a 
company refuses to provide the information requested in the form 
required, or otherwise significantly impedes the Department's 
proceedings, we assign that company first-tier BIA, which is the higher 
of: (1) The highest of the rates found for any firm for the same class 
or kind of merchandise in the same country of origin in the less-than-
fair-value (LTFV) investigation or a prior administrative review; or 
(2) the highest calculated rate found in this review for any firm for 
the same class or kind of merchandise in the same country of origin.
    When a company substantially cooperates with our requests for 
information including, in some cases, verification, but failed to 
provide complete or accurate information, we assign that company 
second-tier BIA, which is the higher of: (1) The highest rate 
(including the ``all others'' rate) ever applicable to the firm for the 
same class or kind of merchandise from either the LTFV investigation or 
a prior administrative review or, if the firm has never before been 
investigated or reviewed, the all others rate from the LTFV 
investigation; or (2) the highest

[[Page 62549]]

calculated rate for any firm in this review for the class or kind of 
merchandise from the same country of origin. See Allied-Signal 
Aerospace Co. v.  United States, 996 F.2d 1185 (Fed. Cir. 1993).
    We applied second-tier BIA to Rubberflex. While Rubberflex 
cooperated throughout the administrative review by submitting 
questionnaire responses and submitting to verification, we found that 
responses provided by Rubberflex could not be verified. Accordingly, we 
resorted to BIA pursuant to section 776(b) of the Act. The deficiencies 
are outlined in detail in the preliminary results of review and in the 
public version of the memorandum on Rubberflex's Failed Verification 
from Holly Kuga to Jeffrey P. Bialos, dated December 12, 1996.
    In this case, the BIA rate is the highest calculated rate for any 
firm in this review for the class or kind of merchandise from the same 
country of origin. Thus, as a result of our review, we determined the 
dumping margin for Rubberflex to be 29.83 percent.

Comments Concerning Rubberflex

    Rubberflex argues that the Department was not justified in 
disregarding its responses and assigning a total BIA rate in the 
preliminary results. Rubberflex contends that the Department verified 
Rubberflex's questionnaire responses, and that, at most, the Department 
should use partial BIA for certain aspects of its dumping calculations. 
Rubberflex made numerous detailed arguments refuting and rebutting the 
Department's preliminary results, verification report, and verification 
failure memo. We have addressed these to the greatest extent 
practicable in this notice. However, many of the comments are extremely 
detailed and many can only be completely addressed by reference to 
proprietary data. Accordingly, we addressed each comment in complete 
detail in a proprietary analysis memorandum to the file dated November 
12, 1997.
    Comment 1: Reconciliation of Sales, Profit and Expenses. Rubberflex 
maintains that it provided the Department with a reconciliation of its 
calendar year 1993 and 1994 trial balances to the appropriate audited, 
consolidated financial statements at verification. Rubberflex states 
that, contrary to the verification report, total sales, profit, 
financing expenses, and indirect selling expenses were reconciled to 
the audited financial statements.
    DOC Position: We agree that Rubberflex was able to reconcile the 
total value of the expenses reported on the trial balance to its 
audited financial statements for the above-mentioned figures. We 
disagree that this had any bearing on the verification of the amounts 
reported in the questionnaire response. This reconciliation was not 
what was requested of the company at verification. Rubberflex 
voluntarily provided the reconciliation of sales, cost and profit from 
the trial balance to the audited financial statement in response to the 
Department's request that it demonstrate that the indirect selling 
expenses figures provided in the revised response provided at 
verification tied to the audited financial statements. Rubberflex did 
not demonstrate that the figures reported in its revised response for 
indirect selling expenses and G&A tied to its audited financial 
statements.
    Comment 2: Reconciliation of Rubberflex's Affiliates' Financial 
Statements. Rubberflex disputes the Department's determination that its 
home market indirect selling expenses did not reconcile to its current 
financial statement due to the fact that indirect selling expenses 
incurred in Rubberflex's U.K. and German branch offices (expenses which 
account for differences between the home market indirect selling 
expenses and the financial statement) could not be verified. Rubberflex 
contends that during verification it demonstrated how total sales, 
expenses, and profits of the U.K. and German branches accounted for 
differences between consolidation totals and totals for Rubberflex in 
Malaysia. Further, Rubberflex claims that it should not be held 
accountable for providing original copies of the auditors' 
consolidation worksheets in the short time permitted at verification. 
Rubberflex also contends that it stressed during verification that 
information involving its U.K. and German branches could only be 
accurately verified on site in those particular countries.
    DOC Position: We disagree. It is one of the primary requirements of 
verification that a company is required to tie the information in its 
questionnaire response to its audited consolidated financial 
statements. Rubberflex failed to do so at verification. Rubberflex is 
essentially arguing that we should accept their attempt, but ultimate 
failure. We disagree. Given the circumstances of this review, where 
Rubberflex provided numerous, inadequately explained or documented 
revisions to its questionnaire response, Rubberflex's failure in this 
regard undermines the entire verification.
    Comment 3: Italian Sales List. Rubberflex states that the 
Department verified that all Italian sales were reported. Moreover, 
Rubberflex contends that the Department noted no discrepancies when 
Rubberflex tied Italian sales to its 1993/94 audited financial 
statements and other ledger balance accounts. Rubberflex claims that 
the sales prices and quantity for all third-country sales reviewed by 
the Department tied to source documents presented by Rubberflex, except 
for one minor discrepancy in the quantity reported in the sales list.
    DOC Position: The Department did not note any discrepancies in its 
verification report with respect to the volume and value of sales to 
Italy. However, we did not verify the price of Italian back-to-back 
sales or inventory sales, since the proof of payment information is 
kept in Italy.
    Comment 4: Foreign Inland Freight, and Brokerage and Handling. 
Rubberflex contends that these expenses were reported on a transaction-
specific basis, and charged on a flat-rate based on the size of the 
container or the bill of lading. Although Rubberflex was unable to 
present original invoices for these expenses, or proof of payment on 
two preselected sales, Rubberflex contends that it was able to 
demonstrate that the flat fee allocated according to the actual 
quantity shipped tied to amounts reported in its response.
    DOC Position: We agree that Rubberflex was unable to present 
original invoices for these expenses, or proof of payment on two 
preselected sales. In addition, our December 12, 1996 memorandum 
Rubberflex Sdn. Bhd.: Reasons for a determination of failed 
verification for the 1993-1994 and 1994-1995 reviews of extruded rubber 
thread from Malaysia (A-557-805) (December 12, 1996 memorandum) states 
that, Rubberflex was missing a number of freight invoices and/or the 
batch statements tying the invoices to the financial statements, and as 
a result, [we] could not document freight expenses from the factory to 
the port. Therefore, we disagree that Rubberflex was able to 
demonstrate that the flat fee allocated according to the actual 
quantity shipped tied to amounts reported in its response.
    Comment 5: Ocean Freight. Rubberflex claims that the Department 
verified ocean freight on sales to Italy on a transaction-specific 
basis, and found no discrepancies in the information presented with 
respect to pre-selected sales.
    DOC Position: We agree with Rubberflex's characterization of the 
verification of ocean freight.
    Comment 6: Credit Expenses in the Home Market. Rubberflex states 
that its original response contained the

[[Page 62550]]

information needed to calculate credit expenses for third-country sales 
and that this response was neither revised nor found to contain any 
significant errors during verification.
    DOC Position: Our verification report notes that Rubberflex 
reported the appropriate expenses for its net interest expense in the 
cost response, but omitted certain expenses related to export credit 
refinancing (EAR) expenses from its calculation of the interest rate 
used in home market sales. Therefore, we disagree with Rubberflex's 
contention that credit expenses for third-country sales were verified 
as reported.
    Comment 7: Packing Expenses Incurred in the Home Market. Rubberflex 
claims that at the beginning of verification, it disclosed to the 
Department that it had erroneously allocated the cost of all factory 
workers' benefits in the category of fixed overhead costs, rather than 
allocating that cost among direct labor costs, fixed overhead costs, 
and packing labor costs. Rubberflex stated that a corrected worksheet 
reflecting this reallocation was submitted to the Department at the 
beginning of the cost verification, and subsequently verified. 
Rubberflex contends that a comparison of the original to the corrected 
worksheets reveals only minor changes in the calculation of packing 
labor costs. Further, Rubberflex also contends that it submitted an 
additional worksheet which proved that the reallocation did not affect 
the total cost of production (COP) or constructed value (CV).
    DOC Position: We agree with Rubberflex that we found only minor 
discrepancies in Rubberflex's calculation of packing material and labor 
expenses. However, we disagree that Rubberflex presented any 
documentation at the beginning of verification to demonstrate what 
changes it made to the classification of labor expenses in its sales 
and cost response. Rubberflex did make a general oral statement that it 
had reallocated some labor costs across packing, indirect overhead and 
factory labor, but it did not spell out those changes. The Department 
then directly and repeatedly requested Rubberflex to provide this 
information in writing, which it said it would do. However, Rubberflex 
failed to report any of its changed allocations until each subject 
arose in the course of the verification.
    Comment 8: Indirect Selling Expenses Incurred in the Home Market. 
Rubberflex states that the worksheets provided in its questionnaire 
response regarding home market indirect selling expenses and general 
and administrative expenses (G&A) were based on its auditor's 
presentation of G&A expenses, which in turn were based on Rubberflex's 
trial balance and general ledger. Rubberflex contends that the titles 
of the concepts listed in the auditor's presentation did not always 
relate directly to the titles of the accounts used by Rubberflex in the 
ordinary course of business because the auditor collapsed several 
accounts into a single concept. Rubberflex further contends that while 
preparing for verification, it discovered that the worksheets in its 
response required two corrections. However, Rubberflex maintains that: 
(1) It disclosed these changes on the first day of verification, (2) 
the Department reviewed these revisions, and (3) these revisions were 
tied to the financial statements.
    DOC Position: As we explained in the Best Information Available for 
Rubberflex section of this notice and the Department's position to 
Comments 1 and 2, Rubberflex failed to demonstrate that it reported all 
of the appropriate indirect selling expenses and G&A expenses to the 
Department, despite three separate submissions, and that it failed to 
tie the reported expenses to its audited financial statements. It 
failed to provide a worksheet, or any other type of document, 
reconciling the titles and concepts used in its trial balance to those 
on the audited financial statements. (See page 2 of the Department's 
December 12, 1996 memorandum concerning the verification failure for 
Rubberflex.) Therefore, Rubberflex failed to demonstrate that it 
included all appropriate indirect selling expenses and G&A expenses in 
its revised exhibit, and that those expenses tied to the total amount 
of expenses recorded for Rubberflex Malaysia on Rubberflex's financial 
statements.
    Comment 9: U.S. Sales Listing. Rubberflex contends that it 
demonstrated at the verification in Malaysia that (1) all purchase 
price (PP) sales entered into the United States during the review 
period were reported; (2) it accurately reported the date of sale for 
PP sales as the Malaysian bill of lading date; and (3) it accurately 
reported foreign inland freight, packing, indirect selling expenses, 
brokerage and handling, international freight and marine insurance 
pertaining to U.S. sales that were incurred in Malaysia.
    DOC Position: We disagree with Rubberflex's characterization of the 
verification of the U.S. sales. Our review of Rubberflex's U.S. sales 
reporting during the U.S. portion of the verification revealed a great 
deal of confusion concerning the date of sale and the accuracy of the 
computer sales listing. Rubberflex was unable to demonstrate that the 
price, quantity and date of sale were accurately reported on the 
computer sales listing. At verification in Malaysia, and in the 
questionnaire response, the date of sale for all PP sales was 
identified as the Malaysian bill of lading date. However, in the United 
States, company officials stated that for certain consignment sales, 
which were made prior to importation, Rubberflex used the date on which 
the rubber thread is withdrawn from Rubberflex's customer's inventory 
as the date of sale. Thus, the questionnaire response, and the 
Malaysian verification findings, were contradicted. Moreover, because 
Rubberflex failed to indicate on its computer tape which sales were 
consignment sales, it was not possible to know what date of sale was 
operative for any of the sales listed on the computer tape.
    With respect to the accuracy of the other expenses: (1) The 
problems with foreign inland freight and indirect selling expenses are 
discussed elsewhere, and (2) we found only minor discrepancies with 
ocean freight, marine insurance or brokerage and handling.
    Comment 10: The Total Volume and Value of PP and Exporter's Sales 
Price (ESP) Sales. Rubberflex argues that the Department was able to 
reconcile the quantity and value of Rubberflex's sales to the response 
after certain adjustments were made at the U.S. verification. 
Rubberflex contends that, at the U.S. verification, Rubberflex provided 
worksheets that traced the reported quantities and values of the U.S. 
sales to Rubberflex's audited financial statements.
    DOC Position: We disagree. The verification report establishes that 
Rubberflex was never able to conclusively demonstrate that its U.S. 
sales were correctly reported. Rubberflex was not able to demonstrate 
the validity of the information provided on the computer tapes by the 
end of the verification.
    As Rubberflex explains in its case brief, it presented a 
reconciliation of the volume and value of sales from its financial 
statements to the response. We found a number of clerical errors and 
omissions, such as credit memos that were initially omitted from the 
reconciliation exercise because they were omitted from the response. We 
found that: (1) Certain sales were reported in two review periods; (2) 
others were misclassified between PP and ESP sales; (3) the date of 
sale for certain PP sales was misreported; and (4) Rubberflex could not 
reconcile its

[[Page 62551]]

credit memos to the specific line items on the computer tape. Given 
that we found errors in almost every phase of the numerous attempted 
reconciliations of U.S. sales, it is not accurate to claim, as does 
Rubberflex, that the quantity of U.S. sales was in any way reconciled 
completely. Consequently, we found that these errors and omissions 
undermined the integrity of the response and made the computer tape 
unusable for the purpose of calculating a margin.
    Comment 11: Date of Sale Methodology for U.S. Sales. Rubberflex 
notes that the Department's December 12, 1996 memorandum stated that 
Rubberflex failed to use the appropriate date of sale methodology for 
purchase price sales in the 1993-1994 review. Rubberflex contends that 
the terms of sale sometimes changed between purchase order and the bill 
of lading date; thus the essential terms were not set on the purchase 
order date. It notes that the reporting methodology for this review is 
consistent with the methodology used in both the original investigation 
and the prior reviews. Rubberflex contends that the verifiers confirmed 
that no entries had been improperly omitted in the beginning of the 
1993-1994 period of review.
    DOC Position: We disagree that Rubberflex reported all of its sales 
to the United States that were required by the questionnaire. Page 33 
of our questionnaire asked Rubberflex to report all purchase price 
sales that caused the entry of the subject merchandise during the 
period of review, regardless of whether the sale date occurred during 
the period of review, or prior to the period of review. Rubberflex 
claimed at verification both in Malaysia and in the United States that 
the terms of the sale, that is, the price and quantity of the sale, 
were fixed on the purchase order date, and that the purchase order was 
required either to initiate production or shipment. The verification 
points to few, if any, changes in the terms of the sale after the 
purchase order date. Therefore, by using the Malaysian bill of lading 
date as date of sale for PP sales, and by reporting only those sales 
that were shipped from Malaysia during the period of review, rather 
than all purchase price sales that caused the entry of the subject 
merchandise during the review period, (which it had the ability to 
report) Rubberflex failed to report all the sales required by the 
Department's questionnaire. In addition, at verification, Rubberflex 
claimed that all consignment sales that entered the U.S. during the 
review period, but were withdrawn from Rubberflex's customer's 
inventory after the review period, should have been reported during the 
subsequent (1994-1995) review period using the U.S. invoice date as the 
date of sale. This date of sale methodology does not agree either with 
what was reported in the response, or what was requested in the 
Department's questionnaire.
    Comment 12: Review Classification According to Date of Entry. 
Rubberflex states that its inadvertent error of classifying 37 sales 
under two different review periods can be easily rectified, and should 
not form the basis for the assignment of total BIA. Rubberflex disputes 
the Department's contention that Rubberflex was not able to state with 
any clarity for which review the 37 sales should have been reported. 
Rubberflex claims that the Department verified the entry dates for the 
sales in question and noted no discrepancies. Therefore, Rubberflex 
requests that the Department revisit this issue and reclassify those 37 
sales into the appropriate review period according to date of entry.
    DOC Position: At verification, Rubberflex was unable to 
appropriately classify all of its sales to the United States with 
regard to review period and type of sale (PP or ESP). We asked 
Rubberflex to properly classify 37 of the approximately 125 PP sales 
that we found reported in both reviews. Rubberflex claimed that all 
consignment sales should be classified in the 1994-1995 review. 
However, this classification did not coincide with the narrative of its 
response which indicated that it used the Malaysian bill of lading date 
as the date of sale. Some of these consignment sales had U.S. entry 
dates which occurred during the 1993-1994 review period. Therefore, 
since the U.S. entry date always follows the bill of lading date in 
Malaysia (since the ship arrives in the U.S. after it leaves Malaysia), 
these sales could not properly be classified in the 1994-1995 review. 
When the Department tried to examine the rest of the computer sales 
listing for the treatment of the date of sale in consignment sales, it 
found that Rubberflex did not indicate which sales were consignment 
sales on the computer sales listing submitted to the Department. 
Consequently, the Department cannot determine whether the rest of the 
sales reported on the computer tape were appropriately classified with 
respect to review period, and therefore, we have no basis by which to 
accurately reclassify these 37 sales or to verify the accuracy of 
respondent's classification of the remaining U.S. sales as reported by 
respondent.
    We note again that it is Rubberflex's responsibility, not the 
Department's, to prepare the questionnaire response. The errors we 
found at verification in the preparation of Rubberflex's U.S. sales 
data were so wide-spread and pervasive that the Department could not 
ensure that any of the reported information was correct unless we were 
to undertake the task of reconstructing the questionnaire response 
ourselves.
    Comment 13: ESP and PP Sales. Rubberflex disputes the Department's 
determination that it misreported or duplicated the reporting of 
certain sales (i.e., certain sales classified as both ESP and PP). 
Rubberflex explains that it clarified during verification the reason 
why certain invoices were referenced under different review periods and 
classified under different U.S. databases. As an example, Rubberflex 
states that sales must be reported under various U.S. classifications 
because certain consignment sales and sales made out of inventory 
normally result in a number of invoices issued by the U.S. affiliate, 
whereas the container corresponding to those sales is recorded in 
Rubberflex's books as a single invoice. Moreover, Rubberflex claims 
that during verification, the Department examined a few invoices having 
similar circumstances and indicated its satisfaction with Rubberflex's 
explanations, and did not request to view additional invoices. 
Rubberflex contends that it properly reported all U.S. sales.
    Petitioner contends that Rubberflex confused the standard for when 
sales are PP versus ESP. If a subsidiary is fully responsible for 
setting the terms of the sale (as Rubberflex's U.S. subsidiary is for 
all U.S. sales), that alone makes the sales ESP sales according to 
Final Determination of Sales at Less Than Fair Value: Brake Drums and 
Brake Rotors From the People's Republic of China, 62 FR 9171, 9171-72 
(February 28, 1997)(Comments 14 and 16).
    DOC Position: We disagree with Rubberflex. Pages 27 and 28 of the 
verification report note that company officials were confused about the 
classification of Rubberflex's U.S. sales with respect to ESP and PP 
and with respect to review period. At the conclusion of the 
verification, company officials were still unable to determine which 
sales should or should not be reported, or whether they were PP or ESP 
sales.
    Comment 14: Credit Memos in the U.S. Market. Rubberflex contends 
that the Department overstates the impact of the omitted credit memos 
during the POR. Rubberflex claims that its U.S. affiliate identified 
the omitted credit

[[Page 62552]]

memos, most of which had no effect on unit price, and thus no effect on 
dumping margins of any U.S. sales. Rubberflex disputes the Department's 
determination that the omitted credit memos made it impossible to tie 
the U.S. sales listing to the U.S. affiliate's financial statements.
    DOC Position: We disagree. Rubberflex reported the U.S. price and 
quantity net of credit notes, despite instructions in the questionnaire 
to record price and quantity adjustments separately. Therefore, it is 
not possible to determine which sales have price and quantity 
adjustments attributed to them by examining the computer tape.
    At verification, Rubberflex was unable to reconcile the credit 
memos to the computer sales listing. First, Rubberflex failed to have 
its reconciliation (via the mechanism of credit memos) of the PP sales 
value from the financial statements to the response prepared at the 
beginning of the verification. Second, Rubberflex initially failed to 
report all of its credit memos with respect to ESP sales on the 
reconciliation from the financial statements to the computer sales 
listing. Further examination revealed that Rubberflex had also failed 
to revise the computer sales listing to account for these missing 
credit memos. Finally, Rubberflex company officials in the United 
States stated that they did not know how to tie the credit memos listed 
in the verification exhibit 52 to the questionnaire response since 
Rubberflex company officials in Malaysia prepared that portion of the 
response.
    Comment 15: U.S. Inland Freight. Rubberflex claims that it tied its 
U.S. average freight expense to its financial statements for a sample 
month, except for a small amount due to accruals.
    DOC Position: We agree with Rubberflex's characterization of the 
U.S. inland freight verification.
    Comment 16: Inventory Carrying Costs. Rubberflex contends that it 
established the accuracy of all of the figures used to calculate 
inventory carrying costs in the United States: the cost of goods sold 
in the U.S. and time on the water.
    DOC Position: We were unable to examine Rubberflex's inventory 
turnover rates and U.S. interest rates during verification and, 
therefore, disagree with Rubberflex's contention that we established 
the accuracy of all the figures necessary to calculate inventory 
carrying costs in the United States. We agree that we found no 
discrepancies in the verification of the cost of goods sold in the 
United States and time on the water, which are the two other figures 
required to verify the inventory carrying costs.
    Comment 17: Corrected Worksheets Should Be Part Of The Record. 
Rubberflex contends that given the time constraints, it was unable to 
present corrected worksheets on the first day of verification, and 
therefore, those worksheets, which Rubberflex contends were 
subsequently submitted and verified, should not be disregarded. 
Rubberflex disputes the Department's finding that it had no worksheets 
to demonstrate how the original responses were prepared or why they 
were changed or what the relationship was between the original and 
revised submissions. Rubberflex contends that corrected worksheets were 
submitted during verification, are referred to in the Department's 
verification report and are found in the verification exhibits. 
Rubberflex states that a side-by-side comparison of the original to the 
revised worksheets clearly reveals the relationship between the 
documents.
    Rubberflex also contends that on the first day of verification, it 
suggested to the Department that any corrected worksheets be included 
as part of the verification exhibits normally submitted after 
verification and that the Department did not object to its proposal. 
Rubberflex also states that it repeatedly requested to submit revised 
computer tapes to reflect corrections it claims to have presented 
during the beginning of verification. However, Rubberflex claims that 
the Department never responded to its request.
    Petitioner emphasized that Rubberflex did not submit to the 
Department a listing of reporting errors at the commencement of 
verification, nor was petitioner served such a list, as required by the 
Department's regulations. Petitioner contends that Rubberflex's claim 
that the Department was advised at the commencement of verification of 
certain errors in its submissions should be of no consequence.
    DOC Position: As stated in our preliminary results, we found that 
the responses provided by Rubberflex could not be verified. The 
inaccuracies which render the response unusable for purposes of margin 
calculations include the fact that Rubberflex attempted to provide 
revised questionnaire responses at verification for home market 
indirect selling expenses, direct labor and packing labor expense, 
variable overhead, financing expenses and the cost of goods sold; for 
these same expenses Rubberflex could not demonstrate how the original 
response was supported by documentation, nor could it document the 
difference between the original and revised submission for these items.
    Rubberflex failed to provide written disclosure of changes made to 
its questionnaire response on the first day of verification, although 
it was asked to do so. Rather, it provided verification exhibits which 
constitute revised questionnaire responses throughout the course of the 
verification. Rubberflex also failed to explain and/or quantify the 
effects of these revisions, rendering the Department unable to assess 
the significance or impact of these changes. As we stated in Elemental 
Sulphur From Canada: Preliminary Results of Antidumping Duty 
Administrative Review, 62 FR 969, 970 (January 7, 1997), the Department 
can accept new information at verification only when (1) the need for 
that information was not evident previously, (2) the information makes 
minor corrections to information already on the record, or (3) the 
information corroborates, supports, or clarifies information already on 
the record.
    Rubberflex states in its brief that it submitted such revisions at 
the beginning of the verification. This is directly contradicted by the 
facts on the record. There were 38 verification exhibits covering the 
verification in Malaysia. The document concerning packing costs is 
exhibit number 18, that regarding direct labor is exhibit number 22 and 
that regarding fixed overhead is exhibit number 33. As such, the record 
clearly demonstrates that the information was provided piecemeal, and 
late in the verification exercise.
    We also disagree with Rubberflex's contention that the Department 
engaged in any discussion during verification concerning a suggestion 
that Rubberflex file any corrected worksheets with the exhibits 
normally filed after verification. We further disagree that Rubberflex 
engaged in any discussion concerning the provision of a revised 
computer tape. Moreover, given the pervasive errors and changes made to 
the questionnaire response and the difficulties verifying those 
changes, the Department has no reason to believe that a new computer 
tape, submitted after verification, would accurately represent the 
changes to the response that were presented during the verification. 
Under the circumstances of this case, the Department would undermine 
its purpose in verifying the questionnaire response by accepting such 
new information after verification.
    Comment 18: Corporate Structure. Rubberflex disputes the 
Department's finding that Rubberflex failed to identify the owners of 
its company and the existence of an affiliated European

[[Page 62553]]

company. Rubberflex claims that it demonstrated the identity of its 
parent company through its annual return to the Government of Malaysia, 
which reports information regarding its shareholders and directors. 
Further, Rubberflex contends that it tied the shareholdings from the 
annual return to a corporate structure worksheet provided in its 
response.
    In addition, regarding any European affiliates, Rubberflex contends 
that it could not provide documentation regarding the sale of these 
companies, which it explained to the Department at verification. 
Rubberflex further states that, regardless, the sale of affiliated 
European resellers have no relevance to Rubberflex's sales verification 
in the home and U.S. markets.
    DOC Position: We disagree with Rubberflex that corporate structure 
was adequately verified. Rubberflex provided new information at 
verification by introducing the existence of a previously unreported 
corporate owner. We asked Rubberflex to provide information regarding 
whether this company had any affiliation with Rubberflex's customers or 
suppliers. However, Rubberflex declined to produce such information. 
Rubberflex merely stated, as it does in its case briefs, that the 
affiliated European resellers have no relevance to Rubberflex's sales 
in the home market and the United States. Consequently, the Department 
was unable to satisfy itself regarding whether any related-party sales, 
loans, equipment purchases or raw material purchases occurred during 
the POR. As the U.S. Court of International Trade stated in Krupp Stahl 
A.G. v.  United States, 17 CIT 450; 822 F. Supp. 789, 792 (1993), it is 
inappropriate for respondents to limit or control which information 
they present to the Department in a way that impedes the Department's 
ability to confirm the accuracy of the questionnaire response or forces 
the Department to use information most beneficial to them.
    Comment 19: Direct Material Costs. Rubberflex claims that the 
Department verified the direct material costs used in its COP and CV 
submissions. Rubberflex contends that the Department examined the 
following steps Rubberflex used to calculate the direct material costs: 
(1) The compound recipes of direct materials latex and chemicals used 
as the basis for determining product-specific cost of productions for 
all types of rubber thread; (2) the budgeted costs used to derive the 
standard per-unit costs; (3) the actual cost of materials used; and (4) 
the variance between standard and actual material costs. Rubberflex 
argues that the Department verified the steps by examining batch 
records (computer listings which aggregate a number of invoices that 
appear as a single line item in the general ledger), testing inventory 
formulas, and determining that Rubberflex accurately captured and 
reflected all direct material costs incurred during the review period.
    Rubberflex notes that the Department questioned the budgeted costs 
because they were derived in 1991 and differed from the weighted-
average costs of materials in inventory. Rubberflex stated that these 
budgeted costs had not been revised since 1991 because they were still 
a reasonable estimation of the costs of the various materials used to 
produce rubber thread and none of the costs had changed significantly. 
Rubberflex argues that the budgeted costs are a reasonably accurate 
tool for predicting costs over time.
    DOC Position: We disagree with Rubberflex that per-unit direct 
materials cost was verified. We did verify the total material cost 
during the POR as well as the actual quantity of materials used. 
However, neither of these figures alone is sufficient to calculate the 
per-unit cost reported in the questionnaire response. Rubberflex 
reported its per-unit material cost by multiplying actual material used 
per product by standard material prices to arrive at a standard cost. 
To calculate a variance, Rubberflex calculated the total material cost 
at standard; it then made a factory-wide adjustment for the difference 
between total actual material cost and the total material cost at 
standard. This methodology is not, in itself, a problem.
    There are two problems which arise from Rubberflex's use of the 
1991 standard prices. The first is that Rubberflex was unable to 
substantiate how those prices were calculated in 1991 and what those 
figures represent. Therefore, it is not possible to evaluate the 
accuracy of the per-unit cost calculations. Rubberflex made no attempt 
to demonstrate that these prices were reasonable, or that the use of 
1991 prices to calculate costs for 1995 products was non-distortive.
    The second problem is that the actual material prices paid by 
Rubberflex during the POR have changed relative to the 1991 standard 
prices that were used as the basis for the company's standard costs and 
variance allocation. As the verification report on page 17 states, we 
compared the 1991 standard prices with the actual POR prices and found 
that the prices of individual materials increased or decreased at 
different rates. In several instances the changes were substantial. 
Because each product uses a different mix of materials, the cost of 
producing each different product would change relative to the cost of 
other products produced in the factory. Thus, by neglecting to update 
its standard material prices to reflect changes in the actual cost of 
materials, Rubberflex failed to accurately capture the per-unit 
materials cost for the subject merchandise, both in terms of its 
standard cost and for its variance allocation.
    Comment 20: Direct Labor Costs. Rubberflex contends that the 
Department verified its labor costs in full. Rubberflex argues that it 
used the following steps to calculate the direct labor costs reported 
in its COP/CV submissions: (1) Calculate actual direct labor cost per 
minute of production by dividing total direct labor costs during the 
review period by the total production time during the review period; 
(2) allocate the cost per minute to specific products based on the 
standard number of minutes required to produce particular types of 
rubber thread; and (3) adjust the product-specific costs calculated 
using the standard yield for the variance between actual and predicted 
factory operation.
    Rubberflex notes that at the beginning of verification, it 
disclosed certain minor revisions, and provided a corrected worksheet, 
to the Department. Rubberflex claims that a side-by-side comparison of 
the original and corrected worksheets reveals only minor corrections. 
In order to verify the corrected worksheet, Rubberflex states that it 
traced all of the reported expenses to its trial balance, and traced 
from the trial balance to the general ledger and relevant source 
documentation.
    DOC Position: We agree that Rubberflex followed the method it 
outlined to determine direct labor expenses. However, we disagree with 
Rubberflex's characterization that these expenses were fully verified. 
See DOC Position to comment 17. Rubberflex failed to clearly 
demonstrate the impact of these changes on the calculations in the 
questionnaire response. For example, Rubberflex contends that the 
revised data reflected merely a reclassification of certain labor 
costs. Despite the fact that much of Rubberflex's explanation is post 
hoc, their own exhibits belie their assertions. An examination of the 
exhibits placed side-by-side in exhibit 3 of Rubberflex's brief reveals 
numerous and significant differences in the exhibits, differences that 
Rubberflex failed to account for.
    A second problem arose during the verification of labor expenses. 
As we explain on page 15 of our verification report, Rubberflex failed 
to provide

[[Page 62554]]

supporting documentation for managerial labor expenses, despite the 
Department's request, thus placing control * * * in the hands of 
uncooperative respondents who could force Commerce to use possibly 
unrepresentative information most beneficial to them. Krupp Stahl, 822 
F. Supp. at 792.
    Comment 21: Variable Overhead Costs. Rubberflex contends that at 
the beginning of verification, it disclosed to the Department two minor 
errors concerning its variable overhead costs: (1) Rubberflex reported 
the salary of the factory supervisor and manager as variable overhead 
costs, rather than fixed overhead costs; and (2) certain components of 
variable overhead needed to be corrected to reflect year-end 
adjustments. Rubberflex stated that a corrected worksheet reflecting 
this reallocation was submitted to the Department during the cost 
verification. Rubberflex claims that a side-by-side comparison of the 
original and corrected worksheets reveals only minor changes. 
Rubberflex states that the costs were verified by the Department and 
that final expense figures used were appropriately recorded in monthly 
accounts, according to the Department's verification report. In 
addition, Rubberflex states that these minor changes were necessitated 
by adjustments made by the auditors after performing a physical 
inventory of materials.
    DOC Position: We disagree. See DOC Position to Comment 17.
    Comment 22: Fixed Overhead Costs. Rubberflex contends that at the 
beginning of verification, it disclosed to the Department several minor 
errors concerning its fixed overhead costs: (1) Rubberflex reported the 
salary of the factory supervisor and manager as variable overhead 
costs, rather than fixed overhead costs; (2) the cost of all benefits 
for workers in the factory was included in fixed overhead cost, rather 
than being allocated among direct labor costs, fixed overhead costs, 
and packing labor costs; and (3) Rubberflex's auditor made a provision 
for writing-off finished goods inventory, which did not exist at the 
time of the original questionnaire response. Rubberflex stated that it 
provided a corrected worksheet reflecting this reallocation during the 
cost verification. Rubberflex contends that the magnitude of any 
corrections made with regard to the original worksheet were minor. 
Rubberflex contends that the Department verified the corrected 
worksheet by tracing expense amounts to source documents, the trial 
balance and the general ledger.
    DOC Position: We disagree. See DOC Position to Comment 17.
    Comment 23: Depreciation. Rubberflex claims that the Department 
verified the reported depreciation figures by tracing the figures to 
the trial balance, general ledger, asset schedules, and selected 
purchase invoices for assets. Rubberflex disputes the Department's 
finding in the verification report that it could not rely on the 
accuracy of reported depreciation expense due to the fact that the 
original cost basis for certain assets acquired prior to 1990 could not 
be traced to the appropriate asset schedule in the year of purchase. 
Rubberflex justifies its inability to produce original cost basis 
information on certain assets by claiming that: (1) It is unreasonable 
for accounting or tax purposes to maintain accounting documents for 
more than five years, particularly where Malaysian tax authorities do 
not require the retention of these documents for that period of time; 
(2) Rubberflex was not notified that such documents may be needed for 
verification purposes; and (3) the Department traced the annual 
depreciation for assets purchased before 1990 to trial balances and 
asset schedules for fiscal years 1993, 1994, and 1995, and could 
plainly see that the assets were being depreciated in a systematic 
manner, which was reviewed and approved by its auditors. Therefore, 
Rubberflex claims that its inability to provide original asset 
schedules for years prior to 1990 does not provide grounds for the 
Department to question the accuracy of the reported costs.
    DOC Position: We disagree with Rubberflex that its inability to 
provide original asset ledgers for certain items requested is not a 
verification problem. The verification report specifies that we became 
aware that Rubberflex purchased certain major pieces of capital 
equipment from an affiliated party. Examples of these purchases are 
recorded on verification exhibit 36. Pages 18 and 19 of the 
verification report note that we attempted to determine whether the 
transfer price of such equipment, and the associated depreciation 
expenses, represented arm's-length transactions. Rubberflex failed to 
provide information responsive to our request. Thus, we were unable to 
satisfy ourselves in this regard.
    We agree that Rubberflex reported the depreciation expenses on its 
books and records, which were audited and in accordance with Malaysian 
GAAP. Normally we use the costs and expenses recorded on the company's 
books and records, provided that we are satisfied that such costs are 
non-distortive. In this case, we had reason to question whether the 
depreciation expenses recorded on Rubberflex's books where under-or 
overstated (i.e. distortive) by reason of an affiliated party 
transaction.
    Finally, it is reasonable to request Rubberflex to document the 
figures that it used to record its depreciation expense on its books 
and records. Rubberflex depreciates certain machines and buildings for 
more than 5 years and reflects those figures on its books and records. 
It is standard verification practice to ask companies to demonstrate 
the figures, and to keep documentation supporting information submitted 
in an antidumping proceeding, for the purpose of verification. The U.S. 
Court of International Trade held in Krupp Stahl, 822 F. Supp. at 792, 
that, despite the fact that the German authorities did not require the 
company to maintain business records for more than five years, it did 
not absolve a respondent in an antidumping proceeding of the 
responsibility of providing source documents to support its 
questionnaire response.
    Comment 24: General and Administrative (G&A) Expenses. Rubberflex 
states that at the beginning of verification, it submitted a revised 
worksheet which properly captured certain G&A expenses. Some of these 
expenses were misclassified as G&A expenses in the original 
questionnaire response and, therefore, were not properly included in 
the worksheet for indirect selling expenses. Rubberflex further 
explains that it provided worksheets and source documentation which 
substantiated its allocation methodology with regard to indirect 
selling expenses and G&A expenses. Rubberflex contends that the 
Department traced the amounts shown in the revised worksheet to 
relevant trial balances, source documentation, and the general ledger.
    DOC Position: We disagree. See DOC Position to Comment 17. The G&A 
expenses in the original questionnaire response were presented in a 
different format from the G&A expenses in the revisions presented at 
verification, so direct comparisons are not possible. Rubberflex never 
presented a systematic explanation of how individual elements of G&A 
were affected by the revisions, nor how or why the totals changed. 
Rather, as with variable overhead, the Department was left with 
insufficient time and information to evaluate the magnitude of the 
change. Again, this was a situation where a company's failure to 
reconcile its submitted costs to its normal books and records prevents 
us from quantifying the magnitude of the distortions which exist in its

[[Page 62555]]

submitted data. Certain Cut-to-Length Carbon Steel Plate From Sweden: 
Preliminary Results of Antidumping Duty Administrative Review, 61 FR 
51898, 51899 (October 4, 1996) (the Department's position adopted in 
the final results of review, 62 FR 18396 (April 15, 1997)).
    Finally, contrary to Rubberflex's assertion, it was unable to tie 
the specific line items from its revised worksheets to the audited 
financial statements. The fact that total profit, sales, and cost of 
goods sold (COGS) figures were traced is irrelevant. It is precisely 
the items which could not be traced--the components of G&A--which were 
under evaluation at verification.
    Comment 25: Financing Expense. Rubberflex states that while 
preparing for verification it discovered slight errors related to the 
amounts reported for bank charges and interest on bills refinanced. 
Rubberflex further states that these corrections were presented to the 
Department at verification and that it demonstrated the accuracy of the 
revised worksheet by tying the total financing expenses and interest 
received to the total expenses stated in the trial balance for 
financing expenses and interest received, respectively.
    DOC Position: We disagree. See DOC Position to Comment 17 and pages 
20 and 21 of the verification report.
    Comment 26: Conduct of the review. Rubberflex contends that it 
fully cooperated under difficult circumstances during this proceeding 
and that the Department must bear a significant portion of the 
responsibility for any problems that arose at verification. In addition 
to the short preparation time given to Rubberflex prior to the 
verification, Rubberflex enumerates a list of Departmental procedural 
errors, which Rubberflex contends unfairly prejudiced its interests and 
resulted in the use of BIA in the preliminary results. According to 
Rubberflex, these procedural errors were due to the Department's 
untimely handling of the case. Rubberflex stated that it did the best 
it could under these circumstances to cooperate fully and that it 
submitted its responses and verification exhibits in a timely manner, 
and prepared for the verification to the extent possible given the time 
available.
    DOC Position: We agree with Rubberflex that there was a great deal 
of case activity within a relatively short period in 1996. However, we 
disagree that we unfairly prejudiced Rubberflex by our conduct of the 
case. The supplemental questionnaires for this and the 1994-1995 review 
were relatively short and not overly demanding and Rubberflex was given 
adequate time to respond. The record reflects that Rubberflex was given 
several extensions of time to submit its data; in fact, Rubberflex was 
granted every extension request it made. Finally, Rubberflex was given 
sufficient notice of the timing of verification, and the Department 
followed the same standard procedures, and issued a standard 
verification outline which was substantially similar for the 
verification of information in both the 1993-1994 and 1994-1995 
reviews. These procedures were similar to those followed in the 
original investigation, when Rubberflex underwent verification. Thus, 
there is little evidence that the Department's conduct of the case 
placed an unreasonable burden on Rubberflex. Rather, in this case, as 
in virtually every case the Department conducts, the burden on 
respondents is to provide accurate and timely data which can be 
verified. To the greatest extent possible, the Department strives to be 
flexible with deadlines for respondents; ultimately, however, it is 
respondents' responsibility to meet this burden. Nevertheless, we took 
into account Rubberflex's level of cooperation in this case in our 
selection of the appropriate BIA rate for Rubberflex's antidumping 
margin. (See Best Information Available for Rubberflex section above.)
    Comment 27: Partial BIA. Because of the arguments presented, 
Rubberflex claims that the application of a total BIA is not warranted. 
Rubberflex contends that during verification, it tied all information 
submitted in its original response to its trial balance, and 
ultimately, to its audited financial statements. Further, Rubberflex 
emphasizes that because the Department verified virtually all of the 
submitted sales and cost data, the fact that a few minor errors were 
disclosed at the commencement of verification should not provide the 
legal basis for the Department to disregard its entire response and 
resort to BIA. Rubberflex cites to prior Departmental determinations in 
which the Department states that it will resort to BIA only for those 
specific items of the response that it was not able to verify. See 
Notice of Preliminary Results of Antidumping Duty Review; Roller Chain, 
Other Than Bicycle, From Japan, 61 FR 28171, (June 4, 1996); Final 
Results of Antidumping Duty Review and Revocation in Part of 
Antidumping Duty Order on Tapered Roller Bearings and Parts Thereof, 
Finished and Unfinished from the People's Republic of China, 62 FR 
6189, (February 11, 1997). Rubberflex concedes that it did not submit 
an error-free response. However, Rubberflex states that minor errors 
and corrections were presented to the Department during verification. 
Rubberflex argues that the fact that some corrections were not 
presented on the first day of verification does not provide the 
Department reasonable grounds for disregarding them because Rubberflex 
was provided only two days for verification preparation. Therefore, in 
light of the above-mentioned circumstances, Rubberflex's cooperation in 
this review, and Rubberflex's claims that the Department was able to 
verify its responses, Rubberflex argues that the Department does not 
have legal grounds to use total BIA.
    Petitioner contends that because the Department determined during 
verification that Rubberflex's questionnaire responses were wholly 
deficient and unverifiable, Rubberflex should therefore be assigned a 
total BIA rate. Petitioner cites to the Department's Analysis 
Memorandum of December 12, 1996 and the verification report, which 
document Rubberflex's uncooperativeness due to misreportings, 
inaccuracies and omissions of certain information. Petitioner therefore 
argues that the Department should assess a margin which corresponds to 
criteria outlined in the Department's Antidumping Manual; * * * when a 
substantial amount of a response does not verify, the Department will 
normally assign the highest margin for the relevant class or kind of 
merchandise among (1) the margins in the petition, (2) the highest 
calculated margin of any respondent within that country * * * See U.S. 
Department of Commerce, Antidumping Manual, July 1993, Ch. 6, at 3. 
Further, Petitioner disputes that Rubberflex's claimed errors are 
minor. Petitioner contends that Rubberflex's purported justification 
for such errors, which Rubberflex claims were the result of year-end 
accounting adjustments, are unsubstantiated, and unpersuasive. 
Petitioner contends that any year-end adjustments should have been 
reported long before verification. Petitioner emphasizes that even 
minor errors would nevertheless generate an inaccurate margin 
calculation, which would place the U.S. industry at a disadvantage, 
given that extruded rubber thread is a commodity, price-sensitive 
product.
    Petitioner emphasizes that Rubberflex did not submit to the 
Department a listing of errors at the commencement of verification, nor 
was petitioner served such a list, as required by the Department's 
regulations. Petitioner contends that Rubberflex's claim that the 
Department was advised at the

[[Page 62556]]

commencement of verification regarding certain errors in its 
submissions is therefore of no consequence.
    DOC Position: We disagree with Rubberflex that the Department was 
able to verify Rubberflex's questionnaire response and tie all of the 
information provided in the original response to the trial balance, and 
ultimately to the audited financial statements. We have addressed this 
issue in the Best Information Available for Rubberflex section of this 
notice.
Comments Concerning Other Respondents
    Comment 28: ESP versus PP Sales. The petitioner alleges that 
Heveafil's back-to-back sales are ESP, and not PP sales, as reported in 
the questionnaire response. The petitioner argues that the name back-
to-back sales indicates that the U.S. subsidiary makes the sale and 
determines the price of the merchandise in the United States. 
Petitioner also notes that both Heveafil's and Filati's April 24, 1995 
questionnaire responses indicate that the company's per-unit price is 
not fixed until the U.S. subsidiary issues the invoice to the U.S. 
customer.
    Petitioner further contends that the Department has found that 
sales made under circumstances like those made by Heveafil and Filati 
are ESP sales. Petitioner notes that in Brake Drums and Brake Rotors 
from the PRC: Preliminary Determination of Sales at Less Than Fair 
Value and Postponement of Final Determination, 61 FR 53190, 53194 
(October 3, 1996), the Department stated that the responsibilities of 
the U.S. affiliates go well beyond those of a processor of sales 
related documentation or a communication link and therefore designated 
the sales in question as ESP sales. Petitioners note that in Certain 
Cold-Rolled and Corrosion-Resistant Carbon Steel Flat Products from 
Korea; Preliminary Results of Antidumping Duty Administrative Review, 
61 FR 51882, 51885 (October 4,1996), the Department found it more 
appropriate to determine that sales were CEP sales where: (1) The U.S. 
subsidiary was the importer of record and took title to the 
merchandise; (2) the U.S. subsidiary financed the relevant sales 
transactions; (3) and the U.S. subsidiary assumed the seller's risk. 
Petitioner argues that Heveafil's and Filati's sales meet these 
criteria.
    Heveafil and Filati contend that the Department has repeatedly 
treated back-to-back sales as PP sales in the original investigation 
and in all prior administrative reviews. They note that Commerce 
verified that the characterization of the sales is correct in both the 
original investigation and the first administrative review.
    Specifically, respondents argue that back-to-back sales must 
continue to be treated as purchase price sales, in accordance with the 
Department's practice for determining indirect PP/EP sales as set forth 
in Certain Corrosion-Resistant Carbon Steel Flat Products from Korea; 
Final Results of Antidumping Duty Administrative Review, 61 FR 18547 
(April 26, 1996). Heveafil and Filati argue that because petitioner has 
not submitted any new factual information that would warrant altering 
the treatment of these sales, the Department must not depart from its 
position in previous determinations. Accordingly, Heveafil and Filati 
argue that back-to-back sales conform to the Department's practice in 
the following ways: (1) Sales were made prior to importation; (2) the 
subject merchandise was shipped directly to the unrelated customer 
without entering the inventory of the related selling agent; (3) direct 
shipment to the unrelated buyer was the customary commercial channel 
for sales of this merchandise between the parties involved; and, (4) 
the related selling agent in the United States acted only as a 
processor of sales-related documentation and a communication link with 
the unrelated U.S. buyers. For the sales made prior to importation, 
Filati and Heveafil further note that date of sale was reported as the 
bill of lading date, which occurred before importation, a methodology 
argued to be consistent with the Department's past determinations.
    DOC Position: We agree that Heveafil's and Filati's back-to-back 
sales are properly treated as PP sales. Each company explained in its 
questionnaire response that the back-to-back sales were made prior to 
importation, and shipped directly to the unrelated buyer without ever 
entering a branch office warehouse. They noted that the branch office 
served only as a processor of sales related documents. Section 772(b) 
of the Act states that: The term `purchase price' means the price at 
which merchandise is purchased, or agreed to be purchased, prior to the 
date of importation, from a reseller or the manufacturer or producer of 
the merchandise, for exportation to the United States. Heveafil's and 
Filati's back-to-back sales fall within the criteria for purchase price 
sales set forth in section 772(b) of the Act. Since there has been no 
record evidence submitted in this segment of the proceeding that would 
cause us to alter our treatment of these sales as PP sales, we are not 
making any changes to our calculations.
    Comment 29: Adjustments for Countervailing Duties (CVDs) Paid. 
Heveafil, Filati and Rubfil contend that the Department must increase 
the U.S. price for certain countervailing duties paid on imports of the 
subject merchandise pursuant to the CVD order. In accordance with 
section 772(d)(1)(D) of the Act, the Department should increase U.S. 
price by the amount of any countervailing duty imposed on the subject 
merchandise to offset an export subsidy. The Department, however, has 
not made adjustments nor increased U.S. price for export subsidies if 
foreign market value (FMV) has been based on CV. Respondents note that 
the Department has declined to make adjustments when FMV is based on 
CV, on the grounds that any benefit conferred through the export 
subsidy is reflected in the production costs as well as in U.S. price. 
(See Notice of Final Results of Antidumping Duty Administrative Review: 
Extruded Rubber Thread from Malaysia, 61 FR 54767 (October 22, 1996).
    Respondents assert that export subsidies, specifically income tax 
holidays and income tax abatements, are not reflected in a company's 
production costs and must be included in an adjustment to U.S. price. 
They note that income taxes are not an element of the cost of 
production. Respondents note that the following Malaysian export 
subsidy programs found in the second and third countervailing duty 
reviews, qualify as income tax holidays or income tax abatements and 
thus, should be used in an adjustment to U.S. price: (1) Pioneer 
Status; (2) Abatement of Income Tax based on Ratio of Export Sales to 
Total Sales; (3) Abatement of Five Percent of the Value of Indigenous 
Malaysian Materials Used in Exports; (4) Industrial Building Allowance; 
and, (5) Double Deduction for Export Promotion Expenses.
    DOC Position: We agree with respondents that the programs: (1) 
Pioneer Status, (2) Abatement of Income Tax Based on the Ratio of 
Export Sales to Total Sales, (3) Abatement of Five Percent of the Value 
of Indigenous Malaysian Materials Used in Exports, (4) Industrial 
Building Allowance, and (5) Double Deduction for Export Promotion 
Expenses have been found countervailable and classified as export 
subsidies in the most recently completed countervailing duty review, 
Extruded Rubber Thread from Malaysia; Final Results of Countervailing 
Duty Administrative Review, 60 FR 55272 (October 25, 1996).
    Therefore, in accordance with section 772(d)(1)(D) of the Act, we 
increase U.S. price by the amount of any

[[Page 62557]]

countervailing duty imposed on the merchandise * * * to offset an 
export subsidy. The two most recently completed CVD reviews, Extruded 
Rubber Thread from Malaysia; Final Results of Countervailing Duty 
Administrative Review, 61 FR 55272 (October 25, 1996) for calendar year 
1993 and Extruded Rubber Thread from Malaysia; Final Results of 
Countervailing Duty Administrative Review, 60 FR 51982 (October 4,1995) 
covering calendar year 1994, apply to this review. The calendar year 
1993 CVD review found country-wide ad valorem net subsidies of 1% for 
all companies, of which 0.28% consisted of export subsidies. Since this 
total net subsidy rate is not de minimis within the meaning of 19 CFR 
355.7 (section 355.7 of the Department's regulations), countervailing 
duties will be imposed and we must increase U.S. price by the amount of 
any countervailing duty imposed on the merchandise * * * to offset an 
export subsidy. In the CVD review covering calendar year 1994, we found 
company-specific ad valorem net subsidies of 0.23% for Heveafil, 0.19% 
for Rubberflex, 0.38% for Rubfil and 1.39% for Filati (of which 0.15% 
constituted export subsidies). These net subsidy rates, with the 
exception of Filati's, are de minimis within the meaning of section 
355.7 of the Department's regulations, and thus, duties will not be 
imposed within the meaning of section 772(d)(1)(D) of the Act. Since 
Filati's rate during both of these two CVD review periods was not de 
minimis within the meaning of section 355.7 of the Department's 
regulations, we therefore increased U.S. price in the antidumping duty 
calculation for Filati by the amount of the countervailing duty imposed 
on the subject merchandise to offset the export subsidies. The amount 
of duty imposed to offset export subsidies is 0.28% for the period 
October 1, 1993 through December 31, 1993, and 0.15% for the period 
January 1, 1994 though September 30, 1994. We made no adjustments for 
Rubberflex since we used BIA to determine the margin.
    However, we do not increase U.S. price under section 772(d)(1)(D) 
of the Act when, like the U.S. price, the foreign market value already 
reflects the benefit of the export subsidies, such as in the case of 
Heveafil and Rubfil. See, e.g., Notice of Final Determination of Sales 
at Less Than Fair Value: Certain Carbon Steel Butt-Weld Pipe Fittings 
from India, 60 FR 10545, 10550 (February 27, 1996). FMV for both Rubfil 
and Heveafil was based on third-country sales and CV in this review. 
With respect to exports to third-country markets, respondents receive 
the same benefits from export subsidies as with exports to the United 
States. Therefore, the benefits from the export subsidies were 
reflected in both the U.S. price and the FMV and no adjustment was made 
to U.S. price. For those sales where CV was used as the basis for FMV, 
we used third-country SG&A expenses, as well as third-country profit in 
determining CV for both companies. Since third-country SG&A and profit 
reflect the benefits from the export subsidies, we have similarly made 
no adjustment to U.S. price for the benefits from export subsidies.
    Comment 30: Import Duties. Filati claims that the Department erred 
in not making an adjustment for TAXH, which represents the impact of a 
duty imposed on imported inputs used to produce rubber thread which 
will later be exported, and is collected only on home market sales. 
Filati notes that TAXH is not collected on export sales. It claims that 
TAXH is included in the price of its home market sales and is passed on 
to its Malaysian customers, and, therefore, constitutes an indirect tax 
imposed directly upon the foreign like product which has not been 
collected on the subject merchandise. Therefore, Filati argues that 
TAXH must be added to U.S. price in accordance with section 
772(d)(1)(C) of the Act. Alternatively, Filati proposes that the 
Department treat TAXH as a difference in circumstances of sale, and 
make a downward adjustment to FMV, in accordance with section 
773(a)(4)(B) of the Act.
    Petitioner disputes Filati's arguments. It claims that Filati did 
not claim that the home market prices it reported to the Department 
include these indirect taxes. Petitioner notes that, as a general 
matter, respondents usually report home market prices to the Department 
already exclusive of indirect taxes. As a result, petitioner argues 
that TAXH should not be netted from reported home market sales.
    DOC Position: We disagree that these expenses represent a tax 
within the meaning of section 772(d)(1)(C). Filati's April 24, 1995 
questionnaire response identifies the expense reported in the TAXH 
column as a duty on imported merchandise. It is imposed when the goods 
are sold in the home market, and remains uncollected when the subject 
merchandise is exported. Consequently, contrary to the Filati's 
characterization of the expense, the expenses recorded in the TAXH 
columns represent a duty, and not a tax. Filati explains that it 
includes the amount of this duty in its home market price and passes it 
on to its customers. The duty is neither added to nor included in the 
price of the export goods. Because this duty is only collected on home 
market sales, and not on export sales, we have determined it to be an 
uncollected duty within the meaning of section 772(d)(1)(B) of the Act, 
rather than an uncollected tax within the meaning of section 
772(d)(1)(C) of the Act. Consequently, pursuant to section 772(d)(1)(B) 
of the Act, we have revised our calculations by adding the amount of 
the uncollected duty to the U.S. price.
    Comment 31: Assessment for Filati with Respect to Re-exports of 
Covered Merchandise. Filati notes that the Department determined a rate 
of 0.00% for the preliminary results of review. It claims that, should 
the Department determine a margin for the final results of review, it 
should take Filati's re-exports of covered merchandise into account 
when determining the assessment rate. Filati contends that it is the 
Department's long-standing policy, which has been upheld by the U.S. 
Court of Appeals for the Federal Circuit (The Torrington Company v. 
United States, 82 F.3d 1039 (Fed. Cir. 1996)), not to calculate or 
collect antidumping duties on subject merchandise that is re-exported 
without any sale to unaffiliated parties in the United States. Filati 
contends that the Department cannot calculate or collect antidumping 
duties regarding such imports, because in the absence of sales in the 
United States, there is no basis for calculating United States price. 
Thus, Filati explains, where a respondent provides evidence that 
merchandise has been re-exported, the Department has modified its 
assessment methodology formula to account for the re-exports. Filati 
argues that it provided evidence of such entries in its September 23, 
1996 supplemental response and that there were no computer programming 
instructions in the preliminary results of review to accommodate such 
re-exports. Filati further argues that the Department should structure 
its assessment instructions along the lines outlined in the 
Department's proposed regulations (by dividing the total duties 
calculated for the period of review (PUDD) by the entered value of the 
sales during the POR, and directing Customs to apply the resulting ad 
valorem rate to entries in the POR) as modified by the ``per-unit'' 
methodology used in the Department's August 31, 1992 memorandum to 
Richard W. Moreland, First Administrative Review of 3.5 Inch Microdisks 
and Coated Media Thereof from Japan (Microdisks), Decisions Made with 
Respect to Issuing Assessment Instructions for all Five

[[Page 62558]]

Japanese Companies which had an either PP and ESP Sales Transactions of 
3.5-Inch Microdisks and Coated Media. Filati argues that this new ad 
valorem assessment rate should be calculated by dividing PUDD by the 
entered value of sales and then multiplying the result by the value of 
entries minus the value of re-exports divided by the value of entries 
(PUDD/entered value of sales* (value of entries-value of re-exports)/
value of entries).
    DOC Position: We have recalculated the margin for Filati and found 
that none of the sales were made at prices that incurred a margin. 
Therefore, the cash deposit rate and the assessment rate is zero and 
this issue is moot.
    Comment 32: The Calculation of the Average Actual Profit for 
Constructed Value. Petitioner contends the Department erroneously used 
Heveafil's, Filati's and Rubfil's average actual profit on both 
profitable and unprofitable sales for the profit figure in the CV 
calculation. Petitioner argues that only profit on profitable sales 
should be used in the calculation.
    Respondents dispute petitioner's contention, arguing that the 
Department calculates profit for CV without excluding below-cost sales. 
In support of its argument, respondents rely on Federal-Mogul Corp. v. 
United States, 918 F. Supp. 386, 403 (CIT 1996) and Torrington Co. v. 
United States, 881 F. Supp. 622, 633 (CIT 1995), as well as a number of 
results of reviews of Antifriction Bearings (Other Than Tapered Roller 
Bearings) and Parts thereof.
    DOC Position: We agree with respondents. Section 773(e)(1)(B)(ii) 
of the Act states that the amount of profit in the constructed value of 
the imported merchandise shall not be less than 8 percent of the sum of 
such general expenses and cost. The Act does not require the Department 
to use only above cost sales in its calculation of profit for CV. This 
position has been upheld in the court cases mentioned above. Therefore, 
we have made no change to our calculations.
    Comment 33: The Use of Color as a Model Match Criterion. Petitioner 
argues that color should be excluded as a matching criterion. 
Petitioner cites Melamine Institutional Dinnerware from Taiwan: Final 
Determination of Sales at Less Than Fair Value (Melamine), 62 FR 1726, 
at 1773 (January 13, 1997), in which the Department stated that [c]olor 
is not a matching criterion in this investigation; thus, it is 
inappropriate to treat these products, if otherwise identical, as 
identical for purposes of model matching.
    According to respondents, color should not be excluded as a 
matching criterion. Since color was used in the original investigation 
and subsequent reviews, the Department must apply the same matching 
criteria in this period of review.
    DOC Position: We agree with respondents that color is an 
appropriate model matching criterion in this case. The Department has 
consistently used color as a product matching criteria in the 
investigation and reviews of the AD order. As we stated in our response 
to Comment 3 in the Final Determination of Sales at Less Than Fair 
Value: Extruded Rubber Thread from Malaysia, 57 FR 38465, 38468 (August 
25, 1992) because color can materially affect cost and be important to 
the customer and the use of the product, the Department determined at 
an early stage of this investigation that color should be included 
among the several product matching criteria. See, Final Determination 
of Sales at Less Than Fair Value: Extruded Rubber Thread from Malaysia, 
57 FR 38465, (August 25, 1992). At this time, petitioner supported this 
decision and has since not offered any substantive reasons for changing 
the matching criteria. Moreover, color is a characteristic fully in 
accordance with the matching criteria as outlined in the January 26, 
1994 memorandum to the file, entitled Changing the Department's 
Questionnaire Order of the Product Concordance. Petitioner did not 
comment on this memo which ranked color as third in the level of 
importance for the product matching criteria. With respect to Melamine, 
this determination covers a product with different physical 
characteristics, different uses and different expectations by the 
ultimate purchasers and, therefore, is irrelevant to this case.
    Comment 34: Heveafil's Reported Cost Figures. Petitioner notes that 
Heveafil reported more than one cost figure for a number of products 
without providing any explanation for the provision of more than one 
weighted-average cost. In addition, petitioner notes that in its 
preliminary results of review, the Department erred in using the 
average of these cost figures to calculate the cost of production for 
Heveafil. Petitioner argues that by using this average cost, rather 
than the highest available cost, Heveafil benefits from the unexplained 
ambiguity in the response.
    DOC Position: We disagree. Heveafil reported more than one per-unit 
cost of production for certain products in the 1994-1995 review, but 
did not have this data problem in the 1993-1994 review. Therefore, we 
have made no change to our calculation.
    Comment 35: Rebates in the Calculation of a Home Market Price for 
comparison to COP. Petitioner asserts that the Department failed to 
deduct Heveafil's rebates from home market prices prior to conducting 
the sales below cost test.
    DOC Position: As indicated on lines 76 and 97 of the third-country 
sales program issued in the preliminary results of review, we have 
taken rebates and discounts into account in our determination of the 
appropriate third-country price to be compared with the cost of 
production in our cost test. Therefore, we have made no change to our 
calculation.
    Comment 36: Marine Insurance. Petitioner asserts that Rubfil did 
not explain how it calculated its reported cost of marine insurance. 
Accordingly, it cannot be determined if marine insurance was correctly 
calculated. Petitioner therefore contends that the Department should 
use, as BIA, the highest unit U.S. marine insurance cost of U.S. sales 
by Rubfil.
    Rubfil responds that in its April 27, 1995 response, it explained 
that marine insurance was paid according to the terms of a global 
insurance policy that covers all risks associated with the shipment of 
merchandise from Rubfil's factory to its customers throughout the 
world. Rubfil provided a copy of the insurance agreement in exhibit C-
1, which did not explicitly spell out the per-shipment terms of the 
policy.
    DOC Position: In its December 19, 1996 Analysis Memorandum for the 
Preliminary Results of Review for Rubfil, the Department noted that 
Rubfil did not fully explain its calculations for marine insurance. 
However, we used the information provided in the questionnaire response 
to calculate our margins. We did not request Rubfil to submit further 
information, and there is no basis for making adverse inferences as 
suggested by petitioner. Therefore, we have not changed our 
calculations in this regard.

Final Results of Review

    As a result of comments received we have revised our preliminary 
results and determine that the following margins exist for the period 
October 1, 1993 through September 30, 1994:

------------------------------------------------------------------------
                                                                Percent 
                    Manufacturer/exporter                        margin 
------------------------------------------------------------------------
Heveafil Sdn. Bhd............................................       0.36
Rubberflex Sdn. Bhd..........................................      29.83
Rubfil Sdn. Bhd..............................................      29.83
Filati Lastex Elastofibre (Malaysia).........................       0.00

[[Page 62559]]

                                                                        
Rubber Thread International..................................      (**) 
------------------------------------------------------------------------
** There were no shipments or sales of covered merchandise that were    
  subject to this review. The company was not investigated/reviewed for 
  earlier periods.                                                      

    The Department shall determine, and the Customs service shall 
assess, antidumping duties on all appropriate entries. Individual 
differences between United States price and foreign market value may 
vary from the percentages stated above. The Department will issue 
appraisement instructions directly to the U.S. Customs Service. Since 
the final results for the more current review period, October 1, 1994 
through September 30, 1995 were published on June 20, 1997, the cash 
deposit instructions contained in that notice will apply to all 
shipments to the United States of subject merchandise entered, or 
withdrawn from warehouse, for consumption on or after June 20, 1997. 
The dumping margins established for the October 1, 1993 through 
September 30, 1994 period will have no effect on the cash deposit rate 
for any firm.
    This notice serves as a final reminder to importers of their 
responsibility under 19 CFR 353.26 to file a certificate regarding the 
reimbursement of antidumping duties prior to liquidation of the 
relevant entries during this review period. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This notice also serves as the only reminder to parties subject to 
administrative protective 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.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)), section 771(i) of 
the Act (19 U.S.C. 1677f(i)) and 19 CFR 353.22.

    Dated: November 12, 1997.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 97-30834 Filed 11-21-97; 8:45 am]
BILLING CODE 3510-DS-P