Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Notices 2959

Department has no way of knowing

what percentage of Rautaruukki’s scrap

amount is from sales of slab.

Rautaruukki responds that it did not

report slab as a by-product and offset its

COP and CV data by revenues from the

sale of slabs. Rautaruukki notes that the

Department verified that by-products

reported include burnt lime, coke, coal

tar, sulfur, benzene, nut coke, and

utilities. Rautaruukki maintains that

slab is not included as a by-product

offset in its submitted costs.

Department Position: We agree with

Rautaruukki. Although Rautaruukki

officials stated that in their management

accounting monthly reports, they

included sales of slabs with by-product

turnovers (See Sales Verification Report

at 5), we found no evidence to show that

Rautaruukki had improperly offset

reported production costs with revenue

from the sale of slab. As discussed in

our cost verification report at page 7, byproduct revenues offset to the cost of

subject merchandise included burnt

lime, coke, coal tar, sulfur, benzene, nut

coke, and utilities. Because we have no

evidence that Rautaruukki included

sales of slab in the by-product offset, we

made no adjustment. Comment 14: Petitioners argue that if

the Department accepts Rautaruukki’s

product-specific cost data, the

Department should make an adjustment

to account for the difference between

Rautaruukki’s May 5, 1997 COP dataset,

which was submitted after verification,

and its audited financial statements.

Petitioners note that the reconciliation

reviewed by the Department was based

on data submitted prior to verification

and that the May 5, 1997 dataset no

longer reconciles to Rautaruukki’s

financial statements. As Rautaruukki

did not explain whether the discrepancy

between its revised COP dataset and its

financial statements relates to subject or

non-subject merchandise, petitioners

recommend that the Department adjust

the submitted data by the amount of the

discrepancy. Rautaruukki replies that the slight

discrepancy between its costs submitted

on May 5, 1997, and its audited

financial statements represents omitted

costs of products sold to third countries

that were outside the scope of this

administrative review. Rautaruukki

further contends that the Department

verified the accuracy and validity of its

cost reconciliation and its production

costs for plate. Therefore, Rautaruukki

concludes that an adjustment to its

reported costs is unwarranted. Department Position: We agree with

practitioners. The reconciliation

reviewed by the Department did not

include the correction of errors

identified at the beginning of

verification (See Cost Verification

Report at 3, 6, and 7). Based on our

revised reconciliation, it appears that

the COP and CV data submitted by

Rautaruukki in its May 5, 1997,

response did not capture all costs as

recorded under the company’s financial

accounting system. As we have no

evidence to support Rautaruukki’s

contention that the difference relates to

third country sales that were outside the

scope of this administrative review, we

adjusted Rautaruukki’s submitted costs

for this small difference. See Analysis

Memorandum dated December 15, 1997.

Final Results of Review

As a result of our review, we have

determined that no margin exists for

Rautaruukki Oy for the period of August

1, 1995 through July 31, 1996. The

Department will issue appraisement

instructions directly to the Customs

Service.

Furthermore, the following deposit

requirements will be effective upon

publication of this notice of final results

of review for all shipments of plate from

Finland entered, or withdrawn from

warehouse, for consumption on or after

the publication date, as provided for by

section 751(a)(1) of the Act: (1) The cash

deposit rates for the reviewed company

will be zero; (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, or the original less than fair

value (LTFV) investigation, but the

manufacturer is, the cash deposit rate

will be the rate established for the most

recent period for the manufacturer of

the merchandise, and (4) if neither the

exporter nor the manufacturer is a firm

covered in this review, the cash deposit

rate will be 40.36 percent. This is the all

others rate from the amended final

determination in the LTFV

investigation. See Amended Final

Determination Pursuant To CIT

Decision: Certain Cut-To-Length Carbon

Steel Plate from Finland, 62 FR 55782

(October 28, 1997). These deposit

requirements when imposed, 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 Section 351.402(f) of the

Department’s regulations to file a

certificate regarding the reimbursement

of antidumping duties prior to

liquidation of the relevant entries

during this review period. Failure to

comply with this requirement could

result in the Secretary’s presumption

that reimbursement of antidumping

duties occurred and the subsequent

assessment of double antidumping

duties.

This notice also serves as a reminder

to parties subject to administrative

protective order (APO) of their

responsibility concerning the

disposition of proprietary information

disclosed under APO in accordance

with Sections 351.305 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 this

notice are in accordance with section

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

1675(a)(1)) and Sec. 351.213 and

351.221 of the Department’s regulations.

Dated: January 12, 1998.

Robert S. LaRussa,

Assistant Secretary for Import

Administration.

[FR Doc. 98–1277 Filed 1–16–98; 8:45 am]

BILLING CODE 3510–DS–M

DEPARTMENT OF COMMERCE

International Trade Administration

[A–423–805]

Certain Cut-to-Length Carbon Steel

Plate From Belgium; Final Results of

Antidumping Duty Administrative

Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of Final Results of

Antidumping Duty Administrative

Review.

SUMMARY: On September 15, 1997, the

Department of Commerce (the

Department) published the preliminary

results of its 1995–96 administrative

review of the antidumping duty order

on cut-to-length carbon steel plate from

Belgium (62 FR 48213). This review

covers one manufacturer/exporter of the

subject merchandise, Fabrique de Fer de

Charleroi, S.A. (FAFER), and its

subsidiary, Charleroi (USA) for the

period August 1, 1995 through July 31,

1996.

EFFECTIVE DATE: January 20, 1998.

FOR FURTHER INFORMATION CONTACT:

Maureen McPhillips or Linda Ludwig,

Office of AD/CVD Enforcement, Group

III, Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, NW., Washington,
2960 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Notices

DC 20230; telephone (202) 482–0193 or

482–3833, respectively.

SUPPLEMENTARY INFORMATION:

Background

On September 15, 1997, the

Department published in the Federal

Register (62 FR 48213), the preliminary

results of the 1995–96 review of the

antidumping duty order on certain cutto-length carbon steel plate from

Belgium (58 FR 44164). At the request

of petitioners, we held a public hearing,

which included a closed session for the

discussion of proprietary information,

on November 18, 1997. The Department

has now completed this administrative

review in accordance with section 751

of the Tariff Act of 1930, as amended

(the Act).

Applicable Statute and Regulations

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 by the

Uruguay Round Agreements Act

(URAA). In addition, unless otherwise

indicated, all references to the

Department’s regulations are to 19 CFR

part 353 (April 1, 1997).

Scope of the Order

The products covered by this

administrative review constitute one

‘‘class or kind’’ of merchandise: certain

cut-to-length carbon steel plate. These

products include hot-rolled carbon steel

universal mill plates (i.e., flat-rolled

products rolled on four faces or in a

closed box pass, of a width exceeding

150 millimeters but not exceeding 1,250

millimeters and of a thickness of not

less than 4 millimeters, not in coils and

without patterns in relief), of

rectangular shape, neither clad, plated

nor coated with metal, whether or not

painted, varnished, or coated with

plastics or other nonmetallic substances;

and certain hot-rolled carbon steel flatrolled products in straight lengths, of

rectangular shape, hot rolled, neither

clad, plated, nor coated with metal,

whether or not painted, varnished, or

coated with plastics or other

nonmetallic substances, 4.75

millimeters or more in thickness and of

a width which exceeds 150 millimeters

and measures at least twice the

thickness, as currently classifiable in the

Harmonized Tariff Schedule (HTS)

under item numbers 7208.40.3030,

7208.40.3060, 7208.51.0030,

7208.51.0045, 7208.51.0060,

7208.52.0000, 7208.53.0000,

7208.90.0000, 7210.70.3000,

7210.90.9000, 7211.13.0000,

7211.14.0030, 7211.14.0045,

7211.90.0000, 7212.40.1000,

7212.40.5000, and 7212.50.0000.

Included are flat-rolled products of

nonrectangular cross-section where

such cross-section is achieved

subsequent to the rolling process (i.e.,

products which have been ‘‘worked

after rolling’’)—for example, products

which have been beveled or rounded at

the edges. Excluded is grade X–70 plate.

The HTS item numbers are provided for

convenience and Customs purposes.

The written description remains

dispositive.

Analysis of Comments Received

We gave interested parties an

opportunity to comment on the

preliminary results of review. The

Department received briefs and rebuttal

briefs from the petitioners, Bethlehem

Steel Corporation, U.S. Steel Company,

Inc., (a Unit of USX Corporation), Inland

Steel Industries, Inc., Geneva Steel, Gulf

States Steel Inc. of Alabama, Sharon

Steel Corporation, and Lukens Steel

Company, and the sole respondent in

this case, Fabrique de Fer de Charleroi.

Based on our analysis of the issues

discussed in these briefs, we have

changed these final results of review

from those published in our preliminary

results.

General Comments

Comment 1: The petitioners argue that

the Department must deduct actual

antidumping and countervailing duties

paid by respondents’ affiliated

importers from the price used to

establish export price (EP) or

constructed export price (CEP).

Department’s Position: We disagree

with petitioners. We continue to adhere

to the statutory interpretation

articulated in the final results of Certain

Cold Rolled and Corrosion-Resistant

Carbon Steel Flat Products from Korea:

Final Results of Antidumping Duty

Administrative Reviews (62 FR 18404),

under which we do not make the

deduction. The Department’s decision

in that case not to make the deduction

was recently affirmed by the Court of

International Trade (CIT), See Ak Steel

Corp. et al. v. United States, Slip Op.

97–160 (CIT, December 1, 1997).

Comment 2: The petitioners contend

that the Department’s duty absorption

determination in the preliminary results

is generally flawed for two major

reasons.

First, petitioners assert that by

inviting the parties to submit new

factual information after verification in

order to rebut its presumption that

‘‘duties will be absorbed for those sales

which were dumped,’’ the Department

undermines the statutory and regulatory

requirement that it rely only on verified

information in the Final Results. In

petitioners’ view, allowing respondents

to place information on the record

which cannot be verified places

petitioners at a distinct disadvantage,

and is inconsistent with a recent ruling

by the Court of Appeals for the Federal

Circuit. See Creswell Trading Co. v.

United States, 15 F.3d 10543, 1060 (Fed.

Cir. 1994). They urge the Department to

abandon this poorly conceived method

and to collect all relevant duty

absorption evidence at the same time as

it collects information necessary to

complete its dumping analysis.

Second, petitioners believe the

Department’s methodology has the

potential to understate the extent to

which antidumping duties were

absorbed. The Department’s

methodology, they affirm, can give the

casual reader the mistaken impression

that the total amount of duties absorbed

was limited to the dumped sales

included in the final antidumping duty

calculated. As the overall dumping

margin is weight averaged, petitioners

contend, the true level of dumping, and

thus of duty absorption, is significantly

greater than the overall margin. To

resolve this problem, petitioners argue

that the Department should state its

duty absorption finding as the

percentage of sales dumped along with

the average level of dumping for those

sales (emphasis in the original). For

example, if five percent of a

respondent’s sales were dumped, and

the overall weighted-average dumping

margin were forty percent, the

Department should state that the

respondent absorbed duties on five

percent of sales at a margin of forty

percent.

Department’s Position: After careful

consideration of petitioners’ views, we

have left our duty absorption

methodology unchanged from the

preliminary results.

Contrary to petitioners’ contention

that we violated the statute by inviting

submission of new factual information

after verification, our regulations allow

us to invite submission of factual

information from parties at any time

during a proceeding. If a party submits

information as a result of such an

invitation, we afford all other interested

parties an opportunity to comment in

writing on such information (see,

§ 353.31(a)). See Comment 6 for the

Department’s position on the duty

absorption issue as it relates specifically

to FAFER. Moreover, the statute and

regulations do not require that all

information submitted to the

Department be examined at verification.
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Notices 2961

See, Monsanto v. United States, 698 F.

Supp. 275,281 (CIT 1988).

We believe the approach suggested by

petitioners is inappropriate and

unreasonable for the following reasons:

(1) A transaction-specific determination

on duty absorption is impractical

because dumping margins on individual

transactions are ‘‘business proprietary;’’

(2) Petitioners’ approach would result in

an artificially inflated duty absorption

percentage which would cause

unnecessary confusion. In a

hypothetical case where, if only one sale

were dumped out of one hundred U.S.

sale transactions, but at a margin of

twenty percent, petitioners apparently

would have the Department determine

that duty absorption had occurred at a

rate of twenty percent on one percent of

the sales. We find this approach

inappropriate and not mandated by

either statute or regulation. Our analysis

focuses on the entire POR. We find that

our methodology better represents

absorption during the POR.

Accordingly, for purposes of these

final results, we have left our duty

absorption methodology unchanged.

Company-Specific Comments

Comment 1: The petitioners claim

that total facts available is warranted in

this case because the ultimate

ownership of FAFER and the full extent

of the company’s affiliations remain

largely unknown despite the

Department’s repeated requests for such

information. The petitioners contend

that party affiliation can affect every

aspect of the Department’s analysis,

including the arm’s-length test, model

matching, and the sales-below-cost test.

Therefore, the petitioners request that

the Department employ total facts

available for the final results.

The petitioners note that in the

preliminary results the Department

found that FAFER is affiliated to a steel

service center to which it sold subject

merchandise during the POR. According

to petitioners, FAFER’s refusal to report

downstream sales of this reseller

violated the Department’s explicit

instructions in its questionnaire not to

report sales to affiliated resellers in the

home market, but instead to report

‘‘downstream sales,’’ i.e., ‘‘the resales by

the affiliates to unaffiliated customers.’’

In addition, the petitioners claim that

FAFER failed to contact the Department

immediately, as instructed, if it would

be unable to report downstream sales as

requested.

The petitioners point out that in its

response to the Department’s

supplemental questionnaire, FAFER

once again failed to report the requested

downstream sales data, but claimed that

the service center ‘‘must * * * be

considered as an unaffiliated customer’’

because FAFER is only a minor

shareholder of {the service center} and

as a result has no control on it.’’ See

FAFER’s January 13, 1997 Letter to the

Department of Commerce at 12–13. The

petitioners argue that FAFER’s

persistent attempts to obscure the true

nature of its corporate structure

compelled the Department to make an

adverse inference with regard to the

level of the Boe ̈l family’s equity

holdings in FAFER and consequently,

FAFER’s sales to this customer were

subjected to and failed the arm’s-length

test. Furthermore, the petitioners claim

that the egregious nature of FAFER’s

refusal to provide the requested

information is compounded by the fact

that some of the information in question

ultimately has proven to be publicly

available from other sources.

The petitioners state that the

Department has, in the past, determined

that the application of facts available is

warranted in certain instances in which

a respondent fails to report downstream

sales. For example, in Certain ColdRolled Carbon Steel Flat Products from

Argentina, 59 FR 37062, 37077 (July 9,

1993), the petitioners state that ‘‘when

the respondents could not, or would

not, report downstream sales, we

applied margins based on BIA to any

U.S. sale matched only to a sale to a

related reseller in the home market that

failed the arm’s-length test.’’ The

petitioners believe that such an

approach should be used in this case.

The petitioners acknowledge that the

Department may exempt respondents

from reporting downstream sales if they

are ‘‘unable’’ to obtain this information,

but contend that FAFER has not met

this burden. In fact, according to the

petitioners, FAFER should have been

able to provide the requested data

because FAFER and the service center

are affiliated not only through equity

holdings, but also through extensive

overlapping membership of their boards

of directors and through family

groupings.

Consequently, the petitioners

recommend that the Department make

an adverse inference and employ total

facts available, using a dumping margin

of 42.64 percent, the highest margin

alleged in the original petition; or, in the

alternative, the margin of 13.31 percent

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

investigation.

The respondent counters that there is

no statutory provision requiring the

Department to use the downstream sales

of an affiliated reseller, and petitioner

fails to cite any legal support for any

requirement on the Department to do so,

particularly where the finding of

affiliation is one based on facts available

in the first instance. Moreover, the

respondent contends that the

Department has already resorted to facts

available in determining that the steel

service center is an affiliated reseller in

the home market, and has therefore

already acted in a manner adverse to

respondent’s interests (since this

allowed the Department to conduct the

arm’s-length test, which led to the

elimination of all identical matching

home market sales to that service

center). In FAFER’s opinion, the

Department should dismiss the

petitioners’ request that we resort to

total facts available because FAFER did,

in fact, cooperate with the Department

to the fullest extent possible, reporting

downstream sales to at least one

affiliated reseller. Finally, FAFER

maintains that it did not have the

authority to obtain downstream sales

data from the service center in question.

Department’s Position: We have

determined that FAFER and the steel

service center to which FAFER sold

subject merchandise during the POR are

affiliated by means of Boe ̈l family

control, pursuant to section 771(33)

(see, Certain Cut-to-Length Carbon Steel

Plate from Belgium; Preliminary Results

of Antidumping Duty Administrative

Review (62 FR 48213)).

Section 776(b) of the Act requires that

if an interested party fails to cooperate

by not acting to the best of its ability to

comply with the Department’s request

for information, the Department may

use an adverse inference in selecting

from the facts otherwise available. Thus,

we may resort to adverse facts available

in response to FAFER’s failure to report

downstream sales unless FAFER

establishes that it could not compel its

affiliate to report those downstream

sales (cf., Notice of Final Results and

Partial Recission of Antidumping Duty

Administrative Review; Roller Chain,

Other Than Bicycle, From Japan (62 FR

60472, 60476) (November 10, 1997)).

Although FAFER claims that it could

not compel its affiliated customer to

provide downstream sales information,

we cannot accept this claim based solely

on the information FAFER has

provided. Respondent has the burden of

proof to show that it cannot compel the

reporting of downstream sales.

However, recognizing that the

Department did not inform FAFER of

certain deficiencies in its attempt to

establish such a claim, we have elected

not to use adverse facts available.

As the result of our conclusion that

FAFER and the steel service center were

indeed affiliated, we applied our arm’slength test and found that sales to the
2962 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Notices

affiliated customer, the steel service

center, were not made at arm’s-length

prices, i.e., at prices comparable to

prices at which the respondent sold

identical merchandise to unaffiliated

customers. In addition, based on the

Department’s previous determination to

disregard sales made at below the cost

of production (COP) in the original

LTFV investigation, we had reasonable

grounds to believe or suspect that sales

of the foreign like product under

consideration for the determination of

NV in this review may have been made

at prices below the COP, as provided by

section 773(b)(2)(A)(i) of the Act.

Therefore, pursuant to section 773(b)(1)

of the Act, we initiated a COP

investigation of sales by FAFER in the

home market. The results of the salesbelow-cost test revealed that the

remaining home market sales to

unaffiliated parties which provided

contemporaneous matches with the U.S.

sales, failed the sales-below-cost test

and could not be used for the

calculation of normal value (see, Certain

Cut-to-Length Carbon Steel Plate from

Belgium: Preliminary Results of

Antidumping Duty Administrative

Review (62 FR 48213)). Therefore, in

accordance with section 773(a)(4) of the

Act, we have continued to disregard all

home market sales and have used

constructed value as the basis for

normal value for these final results.

Comment 2: Although the petitioners

do not dispute that the commission that

FAFER paid to its agent in connection

with U.S. sales represents a reasonable

proxy for FAFER’s unreported U.S.

indirect selling expenses, they do object

to the commission amount applied by

the Department in its margin

calculation.

The petitioners state that since FAFER

did not provide any documents

regarding its commission payments to

Charleroi USA, the Department

attempted to calculate the commission.

However, the petitioners maintain that

the commission amount calculated by

the Department is plainly inconsistent

with information on the record in this

review.

In addition, the petitioners assert that

the disparity between the U.S.

commission amount and the home

market commission amount underscores

their assertion that the figure used by

the Department is not an accurate

measure of FAFER’s U.S. commission

expense.

The petitioners contend that the

record provides sufficient information

to calculate properly the commission

amount to deduct from CEP. They note

that in its response to the Department’s

questionnaire, FAFER states that it pays

its affiliate, Charleroi USA, a

commission calculated as a specific rate

of ‘‘the minimum prices mentioned in

FAFER’s (sic) price guide.’’ (see, Section

A Response). They suggest that this

evidence on the record provides

sufficient information for the

Department to calculate properly the

commission amount to deduct from

constructed export price. The

petitioners urge the Department to use

this commission rate applied to the

price in the price guide as facts

available for FAFER’s U.S. commission

expense.

In its brief, FAFER rejects the

petitioners’ claim that the Department

used the incorrect amount when

deducting from CEP the commission

paid to its affiliate, Charleroi U.S.A.

Moreover, FAFER maintains the

petitioners’ contention that the

Department should use the rate

mentioned in its Section A response

reveals a misinterpretation of FAFER’s

commission policy on the part of

petitioners. FAFER contends that its

Section A statement was a general

policy statement and, as indicated by

the context of item 3.1 of the Section A

response, is subject to the circumstances

under which sales are actually

negotiated, as well as to the resulting

price. For the particular sale at issue,

FAFER states that the general policy on

commissions was superseded by the

facts and circumstances of the sale, and

the Department, based upon the records

of the sale reviewed at verification,

determined the commission actually

paid per metric ton. In FAFER’s

opinion, in light of the availability of

specific sales data, there is no need for

application of a general policy which

did not take effect in the case of the sale

in question.

Furthermore, in its rebuttal brief,

FAFER states that upon further

investigation of the U.S. sales

documentation, it has determined that it

did not pay any commissions to its U.S.

affiliate during the POR and no basis

exists for imputing an amount to its one

U.S. sale. FAFER cites to U.S. Sales

Verification Report, Exhibit 10 as proof

that no U.S. commission was paid.

FAFER asserts that this evidence backs

up its submissions to the Department in

which it unambiguously stated that its

affiliate, Charleroi U.S.A., received no

commission on the subject sale.

FAFER also asserts that the amount

the Department used as the U.S.

commission expense in its preliminary

results was probably, to the best

recollection of FAFER’s counsel who

was present at verification, a service

charge by transmitting banks. FAFER

urges the Department not to increase the

U.S. commission amount, as petitioners

request, but reduce FAFER’s

commission amount to zero.

In rebuttal, the petitioners assert that

FAFER is attempting to downplay its

stated policy regarding its commission

payments to affiliates and seeking to

recast its commission policy to

accommodate the amount used in the

preliminary results. The petitioners

maintain that, contrary to FAFER’s

contention, its section A response states

that commissions may be paid either by

permitting the affiliated agent to

withhold a portion of the sales

proceeds, or by issuance of a credit note

after the transaction is completed (see

Letter from Barnes Richardson &

Colburn to the U.S. Department of

Commerce, at 4 (October 21, 1996)). The

petitioners maintain that this statement

is evidence that although the method of

payment may vary from sale to sale,

there is no indication that the

commission amount itself may vary.

Therefore, the petitioners reiterate their

contention that the Department should

deduct the appropriate commission

amount from CEP and not the inaccurate

amount used in the preliminary results.

Moreover, the petitioners note that

FAFER’s failure to report indirect

selling expenses incurred in the U.S.

resulted in the Department’s use of the

commission amount that FAFER paid its

agent as the facts otherwise available to

fill this void in FAFER’s data. While the

petitioners fully support the

Department’s determination to make

this adjustment to CEP as facts available

for unreported U.S. indirect selling

expenses, they assert that the

Department should use the commissions

that FAFER paid in connection with

U.S. sales only if those commissions

represent a reasonable proxy for

FAFER’s unreported U.S. indirect

selling expenses. The petitioners point

out that in order to give effect to the

purpose of the facts available provision

of the statute, the information selected

as facts available must have probative

value, and must be sufficient to induce

respondents to respond fully to the

Department’s information requests in

the future (see, Rhone Poulenc, Inc. v.

United States, 899 F.2d 1185, 1190–91

(Fed. Cir. 1990)). Should the

Department erroneously determine that

the understated commission amount

used in the preliminary results is

accurate, the petitioners suggest a more

accurate amount for indirect selling

expenses derived from Charleroi USA’s

financial statements.

Department’s Response: We agree

with the respondent’s contention that

further examination of the U.S. sales

documentation obtained at verification
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Notices 2963

reveals that FAFER did not pay any

commission on the U.S. sale in

question. We also agree with petitioners

that the U.S. commission amount

calculated by the Department and used

in the preliminary results as a proxy for

FAFER’s U.S. indirect selling expenses

is inappropriate and does not reflect an

adverse inference. Such an inference is

justified by FAFER’s refusal to comply

with the Department’s requests for

information on its U.S. indirect selling

expenses.

The commission amount used by the

Department in the preliminary results

was an unrealistically low commission

rate and inconsistent with the

commission rate reported by FAFER in

its Section A response at 4 (see the

Department’s October 8, 1997, Internal

Memorandum from Helen Kramer to the

File). Moreover, FAFER acknowledges

that the U.S. commission amount used

in the preliminary results probably

represented a service fee charged by

transmitting banks (see, Respondent’s

Rebuttal Brief, October 22, 1997 at 4,

Footnote 8), not a commission amount.

Therefore, for these final results, while

we have continued to use FAFER’s U.S.

commission expense as facts available

for FAFER’s failure to report U.S.

indirect selling expenses (see, Analysis

Memorandum from Analyst to the File,

January 12, 1998), we are using a

different estimate of this expense. We

find that the commission rate FAFER

typically pays its U.S. affiliate is the

most reasonable estimate of U.S.

indirect selling expenses (see, FAFER’s

Section A Response at 4).

Comment 3: The petitioners note that

in its preliminary results, the

Department subtracted home market

commissions from CV as a

circumstance-of-sale adjustment, but

did not include the value of home

market commissions in the calculation

of the CV itself. The petitioners state

that pursuant to statutory mandate, the

Department’s margin calculation

program should include all direct

selling expenses in the calculation of

CV, including commissions. See 19

U.S.C. § 1677(e)(2)(A).

FAFER maintains that the filed

designated general and administrative

(G&A) expenses already includes

amounts reported in its Section D

response as home market commissions.

According to the respondent, the

Department verified FAFER’s reported

G&A amounts which included

commissions, and to include them again

in the calculation of CV would result in

double-counting. FAFER cites generally

to Cost Verification Report, March 24,

1997, at p. 26 and Cost Verification,

Exhibit 7a in support of its position.

Department’s Position: We agree with

petitioners. In its original Section D

submission of November 18, 1996,

FARER noted that commissions were

included in the variable field G&A. In

its submission of January 21, 1997,

FAFER, on instructions from the

Department, reported home market

commissions in a separate field in

sections B and C. At the sales

verification, we determined that the

commission field was zero and the

indirect selling expense field included

only commissions paid to its affiliate. At

the cost verification, the Department

reviewed FAFER’s G&A calculation and

found it contained only general and

administrative items. At verification

FAFER did not indicate that any of the

G&A expense categories included

selling expenses. A review of the Cost

Verification Report and Exhibit 7a of

that report, cited by the respondent,

supports the Department’s conclusion

that home market commission expenses

were not included in G&A expenses.

The absence of any verified account

which can be tied to home market

commissions leaves us no choice but to

conclude that home market

commissions are not included in

FAFER’s reported G&A expenses.

Therefore, we agree with petitioners that

the Department erroneously understated

CV in its preliminary results by not

including home market commissions,

pursuant to 19 U.S.C. § 1677b(e)(2)(a), in

its calculation of CV. For these final

results, we have added home market

commissions in calculating CV (see,

Analysis Memorandum from Analyst to

the File, January 12, 1998).

Comment 4: The petitioners contend

that in its calculation of CV profit in the

preliminary results, the Department did

not determine the total cost and the

profit rate on the same basis. They

maintain that home market

commissions were included in the

denominator of the ratio to determine

that profit rate, but they were not

included in the total costs multiplied by

the profit rate to determine the per unit

amount of CV profit. Therefore, they

conclude that the Department should

revise its margin calculation program to

ensure that commissions are treated

consistently throughout the

Department’s CV calculations.

FAFER counters that for the same

reason it articulated in regard to

commissions (see Comment 3), the

Department should disregard the

petitioner’s request to recalculate CV

profit.

Department’s Position: We agree with

petitioners. In order to calculate CV

correctly, we must include commissions

in the total costs multiplied by the profit

rate in our calculation of CV profit.

Accordingly, we have changed the

computer program for these final results

(see Comment 4 above).

Comment 5: The petitioners assert

that certain of FAFER’s claimed home

market indirect selling expenses were,

in fact, commissions, as indicated in the

Department’s Sales Verification Report

at 11. In the petitioner’s opinion, it

seems incredible that a company would

not incur any home market indirect

selling expenses and, therefore, the

Department should rely on the facts

available and increase FAFER’s reported

SG&A expense, using the sales and cost

of goods sold figures from FARER’s

unconsolidated statements.

FAFER maintains that no basis exists

for increasing its calculated SG&A

expense rate by the petitioner’s

randomly chosen percent because (1)

the petitioners provide no mathematical

explanation for this figure, and (2) any

amounts that the Department would

ordinarily deem indirect selling

expenses were included in FAFER’s

SG&A rate, which reconciled with its

financial statement at verification.

Department’s Position: We agree with

petitioners. As we stated in our

response to Comment 3 above, home

market indirect selling expenses are not

included in the G&A filed or the

indirect selling expense field. In

addition, despite the Department’s

request in its original questionnaire and

in its supplemental questionnaire of

December 23, 1996, FARER failed to

report any home market indirect selling

expenses or the absence of any indirect

selling expenses.

Therefore, pursuant to section

776(A)(2)(A) of the Act, we have

employed the facts available for

FAFER’s home market indirect selling

expenses. As a proxy for the unreported

home market indirect selling expenses,

we have added a percentage amount

derived by deducting the G&A amounts

reported by FAFER from the SG&A

value stated on FAFER’s unconsolidated

financial statement, and then dividing

the resulting difference by the cost of

goods sold (see, Analysis Memorandum,

January 12, 1998).

Comment 6: FAFER notes that the

Department in its preliminary results

found that the antidumping duties have

been absorbed by FAFER because the

record did not permit a conclusion that

the unaffiliated purchaser in the United

States will pay the ultimate assessed

duty. The Department invited interested

parties to submit evidence to the

contrary within 15 days of the date of

publication. FAFER states that Charleroi

U.S.A. received a letter from the

unaffiliated purchaser certifying that
2964 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Notices

company’s irrevocable commitment to

pay the antidumping duty at issue. This

letter was submitted (and served) in a

timely manner, and should put the issue

to rest in FAFER’s view. FAFER also

requests that the Department decrease

the preliminary margin of 0.22%

accordingly.

In rebuttal, the petitioners assert that

the Department’s invitation to FAFER to

submit new factual information after

verification is contrary to the Tariff Act

of 1930, as amended, and the

Department’s regulations requiring that

the Department rely only on verified

information in its final results for this

review. See 19 U.S.C. § 1677m(i).

The petitioners believe that FAFER’s

submission purporting to demonstrate

that it did not absorb antidumping

duties should be rejected for the

following reasons: (1) The document

from the customer to FAFER was dated

September 29, 1997, only one day before

it was filed with the Department and,

therefore, not part of the original terms

of sale; (2) the document is simply a one

page letter, not notarized, containing no

indication that it is a contractual

obligation; and (3) the document cannot

be relied upon because it has not been

verified by the Department.

In conclusion, the petitioners assert

that the Department should reject

FAFER’s submission for the reasons

noted above, and reaffirm its

determination that FAFER and its

affiliated importer absorbed

antidumping duties.

Department’s Position: We agree with

petitioners as to the results of this duty

absorption inquiry, but not as to the

rationale. In our preliminary results of

review, at the request of petitioners, the

Department undertook a duty

absorption inquiry. The Act provides for

a determination on duty absorption if

the subject merchandise is sold in the

United States through an affiliated

importer. In this case, the reviewed firm

sold through an ‘‘affiliated’’ importer

within the meaning of section 751(a)(4)

of the Act. We preliminarily determined

that FAFER had absorbed the

antidumping duties on one hundred

percent of its U.S. sales because we

could not conclude from the record that

the unaffiliated purchasers in the

United States had agreements to pay the

ultimately assessed duty.

We invited interested parties to

submit evidence that the unaffiliated

purchasers in the United States have

agreements to pay any ultimately

assessed duties charged to the affiliated

importer, Charleroi, USA. In a timely

manner, FAFER submitted a statement

from the customer that he ‘‘[would]

irrevocably commit to make payments

on any antidumping duty with respect

to [the] purchase of the [subject

merchandise], if such duty is assessed

upon final determination by the U.S.

Department of Commerce in this 1995–

1996 administrative review.’’ See

Attachment, dated September 29, 1997,

to the Letter from FAFER to the

Secretary of Commerce, September 30,

1997.

Concerning the petitioners’ objections

to this response, as stated above, we

note that the submission from the

respondent was timely filed within the

fifteen days following the publication of

the preliminary. Our regulations at 19

C.F.R. § 351.31(b)(1) permit the

Department to ask for (and receive)

information pertaining to an

administrative review at any time

during a proceeding. Indeed, in an effort

to obtain more detailed information and

a clarification of the respondent’s

September 30, 1997 submission on duty

absorption, we sent a supplemental

questionnaire to FAFER on November

26, 1997. The petitioners had the

opportunity to comment on the

respondent’s supplementary response

(see, Letter from petitioners to the U.S.

Department of Commerce, December 15,

1997).

After careful consideration of the

evidence on the record, we have

determined that the submission from

the respondent does not establish that

the unaffiliated customer will pay any

ultimately assessed duty (see, Certain

Cut-to-Length Carbon Steel Plate from

Belgium: Preliminary Results of

Antidumping Duty Administrative

Review (62 FR 48213, 48217)) rendering

the petitioners concerns about

verification of the submission moot. In

addition, the petitioners concerns about

the timing of the alleged agreement

between Charleroi U.S.A. and its

customer do not enter into our refusal

to rely on the submission. Petitioners

have not stated any reasons why the

timing of the alleged agreement has a

bearing on its enforceability. As for the

petitioners’ objection to the fact that the

‘‘letter’’ was only one page and not

notarized, the Department does not

consider length a criterion for

substance, and we note that the

submission was properly certified

pursuant to § 353.31(i) of the

Department’s regulations.

In the Preamble to 19 CFR part 351 et

al., Antidumping Duties; Countervailing

Duties; Final Rule, we state that the

Department did not adopt in its final

rules suggestions that it establish

substantive criteria regarding duty

absorption because the Department

‘‘will need experience with absorption

duty inquiries before it is able to

promulgate such criteria.’’ Id. at p.

27318. In this spirit, we have carefully

considered the alleged agreement

presented by Charleroi U.S.A.’s

customer that purportedly indicates that

he will be financially responsible for

any duty assessed by the Department in

this administrative review. We have

concluded, in this case, that the

evidence of record does not demonstrate

the existence of an enforceable

agreement to pay the full amount of the

assessed duties. The fact that the

customer has agreed ‘‘to make payments

on’’ antidumping duties does not

provide for an enforceable agreement to

pay all antidumping duties. The alleged

agreement does not state the exact

number or amount of the ‘‘payments’’

the customer will make to the affiliated

importer, nor that the amounts paid by

the unaffiliated purchaser will be for the

entire amount that is assessed by the

Department. Finally, the agreement

contains no provision as to when the

customer will make such payments.

Given these uncertainties, we cannot

conclude that there is an enforceable

agreement for the unaffiliated purchaser

to pay the duties. Therefore, for these

final results, we have continued to find

that antidumping duties have been

absorbed by FAFER on one hundred

percent of its U.S. sales.

Results of Review

We determine that the following

weighted-average margin exists:

Manufacturer/exporter Period of review Margin

(percent)

Fab. de Fer de Charleroi ................................................................................................................................. 08/01/95–07/31/96 13.75

The Department shall determine, and

the Customs Service shall assess,

antidumping duties on all appropriate

entries. Individual differences between

export price and normal value may vary

from the percentage stated above. The
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Notices 2965

Department will issue appraisement

instructions directly to the Customs

Service.

Furthermore, the following deposit

requirements will be effective upon

publication of this notice of final results

of review for all shipments of certain

cut-to-length carbon steel plate from

Belgium within the scope of the order

entered, or withdrawn from warehouse,

for consumption on or after the

publication date, as provided by section

751(a)(1) of the Tariff Act: (1) The cash

deposit rate for the reviewed company

will be the rate listed above; (2) for

previously reviewed or investigated

companies not listed above, the 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 LTFV investigation, but the

manufacturer is, the cash deposit rate

will be the rate established for the most

recent period for the manufacturer of

the merchandise; and (4) for all other

producers and/or exporters of this

merchandise, the cash deposit rate of

13.31 percent, the ‘‘all others’’ rate,

established in the LTFV investigation,

shall remain in effect until publication

of the final results of the next

administrative review.

We will calculate importer-specific

duty assessment rates on an ad valorem

basis against the entered value of each

entry of subject merchandise during the

POR.

Notification of Interested Parties

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.

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 sanctionable

violation. Timely written notification of

the return/destruction of APO materials

or conversion to judicial protective

order is hereby requested.

This administrative review and notice

are in accordance with Section 751(a)(1)

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

and 19 CFR § 353.22.

Dated: January 12, 1998.

Robert S. LaRussa,

Assistant Secretary for Import

Administration.

[FR Doc. 98–1278 Filed 1–16–98; 8:45 am]

BILLING CODE 3510–DS–M

DEPARTMENT OF COMMERCE

International Trade Administration

[A–588–823]

Professional Electric Cutting Tools

From Japan: Extension of Time Limit

for Final Results of Review

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of extension of final

results of antidumping duty review.

SUMMARY: The Department of Commerce

(‘‘the Department’’) is extending the

final results for the antidumping duty

review of professional electric cutting

tools from Japan. This review covers the

period July 1, 1995 through June 30,

1996.

EFFECTIVE DATE: January 20, 1998.

FOR FURTHER INFORMATION CONTACT: N.

Gerard Zapiain or Steve Jacques at 202–

482–1395 or 202–482–1391; Office of

AD/CVD Enforcement, Group III, Import

Administration, International Trade

Administration, U.S. Department of

Commerce, 14th Street and Constitution

Avenue, NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION: On

December 16, 1997, the Department

published in the Federal Register its

decision that it would extend the

deadline for the final results of review

by 32 days until January 7, 1998 (see 62

FR 65796). The Department has now

determined that it is not practicable to

issue its final results within that time

limit (See Decision Memorandum from

Joseph A. Spetrini, Deputy Assistant

Secretary, Enforcement Group III to

Robert LaRussa, Assistant Secretary for

Import Administration). The

Department is extending the time limit

for completion of the final results for the

full 60 days available until February 4,

1998 in accordance with section

751(a)(3)(A) of the Act.

Dated: January 13, 1998.

Joseph A. Spetrini,

Deputy Assistant Secretary for Enforcement

Group III.

[FR Doc. 98–1276 Filed 1–16–98; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[Docket No. 980114015–8015–01]

RIN 0625–ZA07

CFDA No.: 11.115; Cooperative

Agreement Program for American

Business Centers in Russia

AGENCY: International Trade

Administration, Commerce.

ACTION: Notice.

SUMMARY: The International Trade

Administration (ITA) is soliciting

competitive applications to establish

and operate American Business

Centers (ABCs) in Volgograd and

Chelyabinsk, Russia for a two (2) year

multi-year award period. ABCs will

encourage the export of U.S. goods and

services and stimulate trade and

investment in Russia’s regions. Funds to

support new ABC Awards are not

currently available. All awards resulting

from this announcement are contingent

upon the availability of appropriated

funds.

ABCs will provide, on a user fee

basis, a broad range of business

development and facilitation services to

United States companies in Russia’s

regions. Services provided by the

ABCs will be designed to encourage

more U.S. firms to explore opportunities

for trade and investment in Russia’s

regions and to help them conduct

business there more effectively. The

core services to be provided by the

ABCs include: international telephone,

fax, and data transmission; temporary

office space; space for meetings, small

seminars, and small product exhibitions

or demonstrations; secretarial support

(e.g. word processing, typing, message

taking); translator/interpreters;

photocopying; market research;

counseling on local business conditions;

and arranging appointments with

Russian business contacts. The Centers

also will work closely with Russian

businesses to help them become more

attractive trading partners; identify and

report obstacles to trade and investment;

and serve as a link between financial

institutions, U.S. companies, and

Russian enterprises.

In addition to these core services,

ABCs will support U.S. Government

activities under the Regional Investment

Initiative (RII). This will include

providing, at cost, support for the

activities of the RII coordinators. Such

support may include office space,

computers, telecommunications

equipment and secretarial and

translation services.