11820 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

mattocks and 21.93 percent for axes/

adzes.

This notice serves as a final reminder

to importers of their responsibility

under section 353.26 of the

Department’s regulations to file a

certificate regarding 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 the 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 administrative reviews and

notice are in accordance with section

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

1675(a)(1)) and section 353.22 of the

Department’s regulations.

Dated: March 6, 1997.

Robert S. LaRussa,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 97–6378 Filed 3–12–97; 8:45 am]

BILLING CODE 3510–DS–P

[A–588–810]

Mechanical Transfer Presses From

Japan; Final Results of Antidumping

Administrative Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce

ACTION: Notice of final results of

antidumping duty administrative

review; mechanical transfer presses

from Japan

SUMMARY: On November 6, 1996, the

Department of Commerce (the

Department) published the preliminary

results of review of the antidumping

duty order on mechanical transfer

presses (MTPs) from Japan. The review

covers three manufacturers/exporters of

the subject merchandise to the United

States and the period February 1, 1995

through January 31, 1996. We gave

interested parties an opportunity to

comment on the preliminary results of

review. We received comments from

petitioners, Verson Division of Allied

Products Corp., the United Autoworkers

of America, and the United

Steelworkers of America (AFL–CIO/

CLC) (petitioners). We received rebuttal

comments from Aida Engineering, Ltd.

(Aida). Based on our analysis, we have

changed the final results from those

presented in the preliminary results of

review. We have determined that sales

have not been made below normal value

(NV).

EFFECTIVE DATE: March 13, 1997.

FOR FURTHER INFORMATION CONTACT:

Elisabeth Urfer or Maureen Flannery,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, N.W., Washington

D.C. 20230; telephone (202) 482–4733.

SUPPLEMENTARY INFORMATION:

Applicable Statute

Unless otherwise indicated, all

citations to the statute are references to

the provisions effective January 1, 1995,

the effective date of the amendments

made to the Tariff Act of 1930 (the Act)

by the Uruguay Round Agreements Act

(URAA). In addition, unless otherwise

indicated, all citations to the

Department’s regulations are to the

current regulations, as amended by the

interim regulations published in the

Federal Register on May 11, 1995 (60

FR 25130).

Background

On November 6, 1996, the Department

published the preliminary results of the

review of the antidumping duty order

on MTPs from Japan (61 FR 57387,

November 6, 1996). The Department has

now completed this administrative

review in accordance with section 751

of the Act.

Scope of Review

Imports covered by this review

include MTPs currently classifiable

under Harmonized Tariff Schedule

(HTS) item numbers 8462.99.0035 and

8466.94.5040. The HTS numbers are

provided for convenience and for U.S.

Customs purposes. The written

description remains dispositive of the

scope of the order.

The term ‘‘mechanical transfer

presses’’ refers to automatic metalforming machine tools with multiple die

stations in which the work piece is

moved from station to station by a

transfer mechanism designed as an

integral part of the press and

synchronized with the press action,

whether imported as machines or parts

suitable for use solely or principally

with these machines. These presses may

be imported assembled or unassembled.

This review does not cover certain parts

and accessories, which were determined

to be outside the scope of the order. (See

‘‘Final Scope Ruling on Spare and

Replacement Parts,’’ U.S. Department of

Commerce, March 20, 1992; and ‘‘Final

Scope Ruling on the Antidumping Duty

Order on Mechanical Transfer Presses

(MTPs) from Japan: Request by

Komatsu, Ltd.,’’ U.S. Department of

Commerce, October 1, 1996.)

This review covers three

manufacturers/exporters of MTPs, and

the period February 1, 1995 through

January 31, 1996.

Analysis of the Comments Received

We gave interested parties an

opportunity to comment on the

preliminary results of review. We

received comments from petitioners and

rebuttal comments from Aida.

Comment 1

Petitioners contend that the

Department should exclude below-cost

sales from the calculation of constructed

value profit (CV profit). Petitioners

argue that the Department’s decision to

include below-cost sales in CV profit is

contrary to the statute, the Department’s

current practice, and the Statement of

Administrative Action (SAA)

accompanying the URAA. Petitioners

note that, in the preliminary results, the

Department determined that Aida’s

home market is viable, but that the

particular market situation requires that

NV be based on constructed value (CV)

due to the many differences in

specifications between the various

presses, and because no merchandise

sold in the home market or to a third

country is identical to the merchandise

sold to the United States. Petitioners

note that, consequently, the Department

calculated SG&A and profit based on

home market sales of MTPs in

accordance with section 773(e)(2)(A) of

the Act.

Petitioners state that section

773(e)(2)(A) of the Act requires 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 of

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, before

consumption in the foreign country,

or * * *,

and that section 771(15) of the Act

defines the term ‘‘ordinary course of

trade’’ as excluding sales determined to

be below cost under section 773(b)(1) of

the Act. Petitioners argue that sales

below cost are not in the ordinary
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 11821

course of trade and must be excluded

from CV. Petitioners contend that in the

1994–1995 review the Department

determined that sales were not actually

disregarded under section 773(b) of the

Act, and therefore were not outside the

ordinary course of trade, because

petitioners had not filed a cost

allegation and consequently Commerce

had not investigated below-cost sales.

Petitioners argue that, from the original

less-than-fair value investigation, NV in

MTP cases has always been based on

CV, and that there was no need for them

to file a sales-below-cost allegation,

since all the cost information necessary

to conduct such an investigation was

already before the Department. In

addition, petitioners argue, the

Department has determined, in CV

cases, that a formal cost allegation by

petitioners or initiation of a cost

investigation by the Department

pursuant to section 773(b) of the Act is

not required for the Department to have

‘‘reasonable grounds to believe or

suspect’’ that sales of a foreign like

product are made at prices less than the

cost of production, and, therefore, are

outside the ordinary course of trade.

Petitioners argue that the Department

addressed this issue in the investigation

of sales at less than fair value of large

newspaper printing presses (LNPPs),

another CV case involving custommade, large machines. See Notice of

Final Determination of Sales at LessThan-Fair Value: Large Newspaper

Printing Presses from Japan, 61 FR

38139 (July 23, 1996) (LNPPs from

Japan). Petitioners argue that, in LNPPs

from Japan, the Department determined

that, as with MTPs, because of the

unique specifications and custom-built

nature of this product, the Department

would base NV on CV, and would

calculate selling, general, and

administrative expenses and profit in

accordance with section 773(e)(2)(A) of

the Act. Petitioners note that in LNPPs

from Japan petitioners filed a cost

allegation, but the Department did not

formally initiate a cost investigation.

Petitioners argue that the Department

acknowledged the unique cost reporting

aspects of CV, stating that it:

In effect * * * conducted a cost

investigation and our analysis revealed

evidence that there were home market sales

of merchandise within the purview of this

investigation which were below-cost. Section

771(15) provides that sales and transactions

considered outside the ordinary course of

trade include ‘‘among others’’ below-cost

sales disregarded under Section 773(b)(1).

The Department interprets this provision to

apply to the exclusion of below-cost sales,

even if such sales were not formally

disregarded pursuant to Section 773(b)(1) of

the Act.

Petitioners argue that LNPPs from Japan

is analogous to the present review of

MTPs, but contend that the Department

reached the opposite conclusion in

LNPPs from Japan, and excluded belowcost sales from the CV profit calculation

as outside the ordinary course of trade.

Petitioners argue that, likewise, in

Certain Welded Carbon Steel Pipes and

Tubes from Thailand: Final Results of

Antidumping Duty Administrative

Review, 61 FR 56515 (November 1,

1996) (Pipe and Tube from Thailand),

the Department excluded below-cost

sales from the calculation of CV profit.

Petitioners cite to Secretary of

Agriculture v. United States, 347 U.S.

645, 652–53 (1954) and argue that it is

axiomatic that an agency must conform

its decisions to its prior practice or

explain the reasons for its departure

from that prior practice, and that, in this

review of MTPs, the Department has

failed to explain its departures from its

prior practice in LNPPs from Japan and

Pipe and Tube from Thailand.

Petitioners conclude that, based on the

foregoing, for the final results the

Department should exclude below-cost

sales from the CV profit calculation for

Aida.

Petitioners argue that, in the

administrative review of MTPs from

Japan covering the period February 1,

1994 through January 31, 1995 (1994–

1995 review), the Department’s final

results were also contrary to the statute

and Department practice. Petitioners

contend that, in the 1994–1995 review,

the Department excluded below-cost

sales in its profit calculation for its

preliminary results, then reversed this

preliminary determination, even though

the parties had not briefed the issue.

Aida contends that the Department

properly included all of Aida’s home

market sales in calculating CV profit.

Aida argues that section 773(e)(2)(A) of

the Act provides for the calculation of

profit based on:

the actual amounts * * * realized by the

specific exporter or producer being examined

in the * * * review * * * for profits, in

connection with the production and sale of

the foreign like product, in the ordinary

course of trade, for consumption in the

foreign country.

Aida states that section 771(15)(A) of

the Act, which defines the ordinary

course of trade, provides that sales

disregarded under section 773(b)(1) may

be treated as outside the ordinary course

of trade; section 773(b)(1), in turn, states

that, whenever the Department has

reasonable grounds to believe or suspect

that sales of the foreign like product

have been made below cost, it shall

determine whether this is the case and

whether certain other conditions have

been met. Aida argues that, if the

Department resolves these issues in the

affirmative, such sales may be

disregarded in the determination of NV.

Aida notes that section 773(b)(2) states

that there are reasonable grounds to

believe that below-cost sales were made

if (1) An interested party made an

allegation of below-cost sales or (2) the

Department disregarded as below cost

some or all of the exporter’s sales in a

prior review. Aida states that no belowcost allegation was submitted in this

review pursuant to section 353.31(c),

the Department did not make any

determination of below-cost sales under

section 773(b)(1), and no sales were

disregarded under section 773(b)(1).

Aida also disagrees with petitioners’

argument that below-cost sales per se

are outside the ordinary course of trade.

Aida asserts that this is not what the

statute says; rather, Aida states, the

definition of ordinary course of trade

refers specifically to sales disregarded

under section 773(b)(1), and a

determination to disregard sales under

section 773(b)(1) is a statutory

prerequisite to excluding below-cost

sales from the ordinary course of trade

and from the CV profit calculation. Aida

argues that section 773(b) is not

applicable in the present proceeding,

since there was no allegation of sales

below cost and home market sales were

not considered as the basis for NV. Aida

argues that, accordingly, the conditions

for treating any sales as outside the

ordinary course of trade have not been

met.

Aida argues that the Department’s

inclusion of below-cost sales in the CV

profit calculation is not inconsistent

with its decisions in LNPPs from Japan

and Pipe and Tube from Thailand. Aida

argues that, in LNPPs from Japan, the

petitioner had filed a timely and proper

cost allegation, and the Department

conceded that it should have formally

addressed the sales-below-cost

allegation, but stated that it did not

foresee the implications of a formal

initiation of a sales-below investigation

would have on the CV profit and SG&A

calculations. Aida argues that the issue

faced by the Department in LNPPs from

Japan does not exist here and the

Department’s decision in LNPPs from

Japan is inapplicable. Aida argues that,

in Pipe and Tube from Thailand, the

Department initiated a below-cost

investigation pursuant to section

773(b)(2), and as a result of that

investigation disregarded certain home

market sales under section 773(b)(1).

Aida further contends that petitioners

argument that Aida’s sales are outside

the ordinary course of trade is not

supported by the SAA. Aida notes that,
11822 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

with regard to section 773(e)(2)(A), cited

by petitioner, the SAA states that

‘‘under section 773(e)(2)(A), in most

cases, Commerce would use profitable

sales as the basis for calculating profit

for purposes of constructed value,’’ and

argues that this statement clearly

recognizes that in certain circumstances

below-cost sales should be included in

the profit calculation. SAA at 170,

House Doc. 103–316 at 840. Aida

contends that such circumstances exist

in this case.

Aida points out that the Department

noted in LNPPs from Japan that:

this being one of the first cases under the

new law, we are still developing our practice

for computing profit and SG&A in

accordance with the new law.

Aida argues that, in this context, and in

view of the petitioner’s below-cost

allegations, the Department stated in

LNPPs from Japan that below-cost sales

could be excluded ‘‘even if such sales

were not formally disregarded pursuant

to section 773(b)(1) of the Act.’’ Aida

contends that the Department

apparently relied upon the phrase

‘‘among others’’ in section 771(15),

which defines ordinary course of trade,

as the basis for this statement, and

argues that that provision is

inapplicable in the present case. Aida

contends that in explaining ‘‘among

others’’ the SAA states:

Commerce may consider other types of

sales or transactions to be outside the

ordinary course of trade when such sales

have characteristics that are not ordinary as

compared to sales or transactions generally

made in the same market.

Examples of such sales include

‘‘merchandise produced to unusual

product specifications, merchandise

sold at aberrational prices, or

merchandise sold pursuant to unusual

terms of sale.’’ SAA at 164, House Doc.

103–316 at 834. Aida argues that there

is no evidence in the record that Aida’s

below-cost sales fell into any such

category or otherwise were outside the

ordinary course of trade.

Aida contends that, even if the

requisite conditions for disregarding

home market sales had been met, the

Department was within its discretion in

not excluding such sales from CV profit.

Aida argues that section 773(b)(1) states

that, when sales are found to meet the

conditions set forth therein, such sales

may be disregarded in the determination

of NV, but that such sales are not

automatically disregarded. Aida further

argues that, even if sales are disregarded

under section 773(b)(1), the SAA makes

clear that they are neither automatically

outside the ordinary course of trade nor

automatically excluded from CV profit.

Aida argues that there was no reason

for the Department to make any

determination as to whether any home

market sales should be disregarded

under section 773(b)(1) since it

concluded at the outset of the review

that NV should be based on CV. Aida

also notes that no allegation of sales

below cost was received by the

Department. Aida maintains that the

Department properly determined that

the conditions were not met for treating

below-cost home market sales as outside

the ordinary course of trade and

properly included all home market sales

of MTPs in its calculation of CV.

Aida disagrees with petitioners

contention that the Department’s

decision on this point in the 1994–1995

review is contrary to the statute,

Department practice, and the SAA. Aida

argues that in the 1994–1995 review the

Department concluded that there was no

basis for excluding below-cost sales

from the CV profit calculation because

the Department did not receive an

allegation that home market sales were

made at prices below the cost of

production, and did not determine that

any home market sales were outside the

ordinary course of trade.

Department’s Position: As both

petitioners and Aida note, section

773(e)(2)(A) requires that sales used as

the basis of CV profit be made in the

ordinary course of trade. Section

771(15) of the Act defines the ordinary

course of trade as:

the conditions or practices which, for a

reasonable time prior to the exportation of

the subject merchandise, have been normal

in the trade under consideration with respect

to merchandise of the same class or kind.

Section 771(15) further provides that

sales and transactions considered

outside the ordinary course of trade

include, ‘‘among others,’’ below-cost

sales disregarded under section

773(b)(1). Section 773(b)(1) directs the

Department to disregard sales made at

less than the cost of production that

have been made within an extended

period of time (i.e., normally one year,

but not less than six months) in

substantial quantities, and at prices

which do not permit recovery of all

costs within a reasonable period of time.

MTPs are large custom-built capital

equipment, where the merchandise

produced for each sale is unique. In

such cases, the Department often resorts

to the use of CV rather than conducting

price-to-price comparisons. In this case,

the Department determined to go

directly to CV because, while the home

market was viable, the particular market

situation, which requires that the

subject merchandise be built to each

customer’s specifications, did not

permit proper price-to price

comparisons in either the home market

or third countries. See Mechanical

Transfer Presses From Japan;

Preliminary Results of Antidumping

Duty Administrative Review, 61 FR

57387 (November, 6, 1996). As a result,

we did not require that Aida provide

home market sales data. Neither party

has contested the use of CV.

In order to calculate profit pursuant to

section 773(e)(2)(A) of the Act, we asked

Aida to provide aggregate cost and sales

data for its home market sales of MTPs.

Aida, however, provided us with a

detailed cost build-up, a total cost of

production, a comparison sales price,

and a resulting loss for certain of its

home market sales. Based on this

information, the Department had

reasonable grounds to believe that home

market sales of the foreign like product

were made at prices below the cost of

production. Because each MTP is

custom-built, differs significantly in

specifications, and is essentially a

discrete model, we performed the cost

test on a sale-by-sale basis. The

Department found that some home

market models were sold at prices

below the cost of production in

substantial quantities, within an

extended period of time, and at prices

which do not permit recovery of cost

within a reasonable period of time.

We conclude, therefore, that in this

review it is appropriate to exclude these

sales from the profit calculation as

outside the ordinary course of trade,

pursuant to section 771(15) of the Act.

The fact that technically we did not

‘‘disregard’’ such sales in a price-based

determination of NV as provided in

section 771(15) of the Act, does not

prevent the Department from finding

these sales to be outside the ordinary

course of trade when we have, in effect,

conducted a cost test on the sales and

found that they have failed. We would

have disregarded these sales, pursuant

to section 773(b)(1) of the Act, if we

were using price-to-price comparisons,

and, as a result, we believe it is

appropriate to do so here. With respect

to petitioner’s comments regarding the

final results of review for the 1994–1995

period, those results are in litigation

before the Court of International Trade,

and should properly be addressed in the

context of that litigation.

Final Results of the Review

We determine that the following

dumping margins exist:
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 11823

Manufacturer/exporter Time period Margin

(percent)

Aida Engineering, Ltd. ................................................................................................................................................ 2/1/95—1/31/96 0.00

Hitachi-Zosen ............................................................................................................................................................. 2/1/95—1/31/96 1 0.00

Ishikawajima-Harima Heavy Industries, Ltd. .............................................................................................................. 2/1/95—1/31/96 1 0.00

1 No shipments subject to this review. Rate is from the last segment of the proceeding in which the firm had shipments.

The Department shall determine, and

the Customs Service shall assess,

antidumping duties on all appropriate

entries. The Department will issue

appraisement instructions on each

exporter directly to the Customs

Service.

Furthermore, the following deposit

rates will be effective upon publication

of these final results for all shipments of

MTPs from Japan entered, or withdrawn

from warehouse, for consumption on or

after the publication date, as provided

for by section 751(a)(2)(c) of the Act: (1)

The cash deposit rate for reviewed

companies will be the rate established

in these final results; (2) for previously

reviewed or investigated companies not

listed above, the cash deposit rate will

continue to be the company-specific rate

published for the most recent period; (3)

if the exporter is not a firm covered in

this review, a prior review or the

original less-than-fair-value

investigation, but the manufacturer is,

the cash deposit rate will be the rate

established for the most recent period

for the manufacturer of the

merchandise; and (4) for all other

producers and/or exporters of this

merchandise, the cash deposit rate shall

be the rate established in the

investigation of sales at less than fair

value, which is 14.51 percent. These

deposit requirements shall remain in

effect until publication of the final

results of the next administrative

review.

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 subsequent assessment of

double antidumping duties.

Notification to Interested Parties

This notice also serves as a reminder

to parties subject to administrative

protective order (APO) of their

responsibility concerning the

disposition of proprietary information

disclosed under APO in accordance

with 19 CFR 353.34(d). Timely written

notification of return/destruction of

APO materials or conversion to judicial

protective order is hereby requested.

Failure to comply with 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)) and 19

CFR 353.22.

Dated: March 6, 1997.

Robert S. LaRussa,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 97–6382 Filed 3–12–97; 8:45 am]

BILLING CODE 3510–DS–P

[A–570–501]

Natural Bristle Paint Brushes and

Brush Heads From the People’s

Republic of China; Final Results of

Antidumping Duty Administrative

Review

AGENCY: International Trade

Administration/Import Administration.

ACTION: Notice of final results of the

antidumping duty administrative review

of natural bristle paint brushes and

brush heads from the People’s Republic

of China.

SUMMARY: On November 6, 1996, the

Department of Commerce (the

Department) published the preliminary

results of its administrative review of

the antidumping order on natural bristle

paint brushes and brush heads (paint

brushes) from the People’s Republic of

China (PRC). The review covers the

period February 1, 1995 through January

31, 1996.

We gave interested parties an

opportunity to comment on our

preliminary results. The Department

received no comments, and these final

results of review remain unchanged

from the preliminary results of review.

EFFECTIVE DATE: March 13, 1997.

FOR FURTHER INFORMATION CONTACT:

Elisabeth Urfer or Maureen Flannery,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, N.W., Washington

D.C. 20230; telephone (202) 482–4733.

SUPPLEMENTARY INFORMATION:

Applicable Statute

Unless otherwise indicated, all

citations to the statute are references to

the provisions effective January 1, 1995,

the effective date of the amendments

made to the Tariff Act of 1930 (the Act)

by the Uruguay Round Agreements Act

(URAA). In addition, unless otherwise

indicated, all citations to the

Department’s regulations are to the

current regulations, as amended by the

interim regulations published in the

Federal Register on May 11, 1995 (60

FR 25130).

Background

On November 6, 1996, the Department

published the preliminary results of

review (61 FR 57389). The Department

has now completed this administrative

review in accordance with section 751

of the Act.

Scope of Review

Imports covered by this review are

shipments of natural bristle paint

brushes and brush heads from the PRC.

Excluded from the order are paint

brushes with a blend of 40 percent

natural bristles and 60 percent synthetic

filaments. The merchandise under

review is currently classifiable under

item 9603.40.40.40 of the Harmonized

Tariff Schedule of the United States

(HTSUS). Although the HTSUS

subheading is provided for convenience

and customs purposes, the written

description of the merchandise is

dispositive.

This review covers the period

February 1, 1995 through January 31,

1996.

Final Results of Review

We gave interested parties an

opportunity to comment on the

preliminary results. The Department

received no comments, and we have not

changed the results from the

preliminary results.

We determine that the following

dumping margins exist: