[Federal Register Volume 63, Number 106 (Wednesday, June 3, 1998)]
[Notices]
[Pages 30185-30194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14759]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-427-811]


Certain Stainless Steel Wire Rods From France: 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.

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SUMMARY: On January 26, 1998, the Department of Commerce (the 
Department) published the preliminary results of the third 
administrative review of the antidumping duty order on certain 
stainless steel wire rods from France. This review covers Imphy S.A. 
and Ugine-Savoie, two manufacturers/exporters of the subject 
merchandise to the United States. The period of review (POR) is January 
1, 1996 through December 31, 1996. We gave interested parties an 
opportunity to comment on our preliminary results. Based on our 
analysis of the comments received, we have changed the results from 
those presented in the preliminary results of review.

EFFECTIVE DATE: June 3, 1998.

FOR FURTHER INFORMATION CONTACT: Robert Bolling or Stephen Jacques, AD/
CVD Enforcement Group III, Office 9, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, N.W., Washington, DC 20230; telephone: 
(202) 482-3434 or (202) 482-1391, respectively.

SUPPLEMENTARY INFORMATION

The Applicable Statute

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (the Act), are references to the provisions effective 
January 1, 1995, the effective date of the amendments made to the Act 
by the Uruguay Round Agreements Act (URAA). In addition, unless 
otherwise indicated, all citations to the Department's regulations are 
to 19 C.F.R. Part 353 (1997).

Background

    On January 26, 1998, the Department published in the Federal 
Register the preliminary results of the third administrative review of 
the antidumping duty order on certain stainless steel wire rods from 
France (63 FR 3704, January 26, 1998). The Department has now completed 
this administrative review in accordance with section 751 of the Act.

Scope of the Review

    The products covered by this administrative review are certain 
stainless steel wire rod (SSWR) products which are hot-rolled or hot-
rolled annealed, and/or pickled rounds, squares, octagons, hexagons, or 
other shapes, in coils. SSWR are made of alloy steels containing, by 
weight, 1.2 percent or less of carbon and 10.5 percent or more of 
chromium, with or without other elements. These products are only 
manufactured by hot-rolling, are normally sold in coiled form, and are 
of solid cross section. The majority of SSWR sold in the United States 
is round in cross-sectional shape, annealed, and pickled. The most 
common size is 5.5 millimeters in diameter.
    The SSWR subject to this review is currently classifiable under 
subheadings 7221.00.0005, 7221.00.0015, 7221.00.0020, 7221.00.0030, 
7221.00.0040, 7221.00.0045, 7221.00.0060, 7221.00.0075, and 
7221.00.0080 of the Harmonized Tariff Schedule of the United States 
(HTSUS). Although the HTSUS subheadings are provided for convenience 
and Customs purposes, our written description of the scope of the order 
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 
Imphy S.A. and Ugine-Savoie, manufacturers/exporters of the subject 
merchandise (respondents), and from Al Tech Specialty Steel Corp., 
Armco Stainless & Alloy Products, Carpenter Technology Corp., Republic 
Engineered Steels, Talley Metals Technology, Inc., and United 
Steelworkers of America, AFL-CIO/CLC (petitioners).
    Comment 1: Respondents argue that the Department improperly 
resorted to constructed value (CV), instead of utilizing 
contemporaneous home market sales made in the ordinary course of trade. 
Respondents note that in the Department's preliminary results, the 
Department disregarded numerous home market sales that were below the 
cost of production and, therefore, outside the ordinary course of 
trade. In these instances, respondents contend that the Department 
inappropriately resorted to CV, despite the existence of 
contemporaneous home market sales of the foreign like product made in 
the ordinary course of trade. Consequently, respondents argue that the 
Department contravened the Court of Appeals for the Federal Circuit 
(CAFC) January 8, 1998 decision in CEMEX v. United States, 133 F.3d 897 
(Fed. Cir. 1998) (CEMEX). Respondents state that in CEMEX, the 
Department disregarded home market sales of subject merchandise that 
was comparable to the merchandise sold in the United States, as not in 
the ordinary course of trade and, thus, ineligible as the basis for 
determining foreign market value. Therefore, the Department used CV as 
the basis for comparing U.S. sales.
    Respondents note that although CEMEX was decided under pre-URAA 
law, the reasoning of the Court is applicable to the new statute. The 
new statute continues to subordinate CV to home market sales for 
determining normal value, therefore, allowing the Department to use CV 
only where price for home market sales of the foreign like product in 
the ordinary course of trade cannot be determined.
    Respondents note that in recent Departmental decisions, the 
Department has referenced CEMEX, but never applied it's holding due to 
time constraints and the fact that the case was decided under pre-URAA 
law. Respondents contend that although CEMEX was decided under pre-URAA 
law, the principles are applicable and must be applied. Respondents 
argue that by applying its own matching hierarchy, the Department has 
the facts on the record to confirm that contemporaneous sales of 
foreign like product in the ordinary course of trade exist; therefore, 
the Department does not need to resort to CV in these instances.
    Petitioners argue that the Department should not modify its 
preliminary results with regard to the CEMEX decision. Petitioners 
contend that the Department has examined and rejected arguments that it 
should depart from its normal methodology and base normal value on 
other models if the Department finds that all contemporaneous sales of 
the identical or most similar merchandise are made at below-cost 
prices, citing Final Results of Antidumping Administrative Review: 
Canned Pineapple Fruit from Thailand;

[[Page 30186]]

63 FR 7392, 7393 (February 13, 1998) (Pineapple). In the Pineapple 
case, petitioners note that the Department determined that it should 
not modify its preliminary methodology to conform to CEMEX, ``Because 
the Court's decision was issued so close to the deadline for completing 
this administrative review, we have not had sufficient time to evaluate 
and apply (if appropriate and if there are adequate facts on the 
record) the decision to the facts of the ``post-URAA'' case. For these 
reasons, we have determined to continue to apply our policy regarding 
the use of CV when we have disregarded below-cost sales from the 
calculation of NV.'' Petitioners also state that a similar approach was 
applied in Final Results of Antidumping Administrative Review: Silicon 
Metal from Brazil; 63 FR 6899 (February 11, 1998).
    Petitioners state that if the Department was to revise its model-
match methodology, the Department should focus on the facts on the 
record because, when this review began, it was assumed that the 
Department would use constructed value when the identical or most 
similar matches identified were at below-cost prices. Thus, petitioners 
argue that the record of this case does not permit use of the CEMEX 
methodology. Petitioners point to the preliminary determinations in the 
investigations of stainless steel wire rod as evidence. See Notice of 
Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination: Stainless Steel Wire Rod from 
Taiwan; 63 FR 10841 (March 5, 1998) (SSWR from Taiwan). Petitioners 
note that in SSWR from Taiwan, the Department stated that in order to 
apply the CEMEX methodology, it would need information on the 
appropriate product comparisons following application of the below-cost 
test. Additionally, petitioners argue that in SSWR from Taiwan, the 
Department did not rely on respondents' internal-code systems to 
identify the next most similar models as a means to implement CEMEX. 
Therefore, the Department issued a supplemental questionnaire in SSWR 
from Taiwan requesting additional information on product 
characteristics in order to be able to search for the next most similar 
model when a matched product was sold below cost.
    Petitioners argue that the Department's approach in the SSWR from 
Taiwan is in contrast to this case. In this review, petitioners argue 
that the Department has accepted respondents' internal product-coding 
system, in lieu of Department-developed criteria. Thus, petitioners 
assert that by relying on respondents' internal product-coding system 
and using the CEMEX methodology, the Department would use sales of less 
similar models as the basis for normal value instead of CV. Moreover, 
petitioners contend that the Department has not obtained additional 
information regarding more precise physical characteristics of the 
subject merchandise, or alternative matches to the models proposed, 
that it would need in order to implement CEMEX. Petitioners note that 
the respondents offered no more than three similar types of merchandise 
as a basis for comparison. Additionally, petitioners claim that the 
record data does not provide adequate alternative matches for the 
Department to apply the CEMEX methodology. Finally, petitioners 
maintain that were the Department to apply CEMEX in this case, it would 
be inconsistent with its own conclusions in SSWR from Taiwan. For these 
reasons, petitioners argue that the Department should reject 
respondents' allegation that it should apply CEMEX and state that, 
given the short time since the Federal Circuit decision and the lack of 
adequate record data, the Department will continue to apply its normal 
methodology of resorting to CV where the model selected for comparison 
is not in the ordinary course of trade. Department's Position: We agree 
with the respondents. In CEMEX, based on the pre-URAA version of the 
Act, the Court discussed the appropriateness of using CV as the basis 
for foreign market value when the Department finds home market sales to 
be outside the ``ordinary course of trade.'' The URAA amended the 
definition of sales outside the ``ordinary course of trade'' to include 
sales disregarded under section 773(b)(1) of the Act. See section 
771(15) of the Act. Consequently, the Department has reconsidered its 
practice in accordance with this court decision and has determined that 
it would be inappropriate to resort directly to CV, in lieu of foreign 
market sales, as the basis for normal value if the Department finds 
foreign market sales of merchandise identical or most similar to that 
sold in the United States to be outside the ``ordinary course of 
trade.''
    We will match a given U.S. sale to foreign market sales of the next 
most similar model when all sales of the most comparable model are 
below cost. The Department will use CV as the basis for normal value 
only when there are no above-cost sales that are otherwise suitable for 
comparison. Therefore, in this proceeding, when making comparisons in 
accordance with section 771(16) of the Act, we considered all products 
sold in the home market as described in the ``Scope of Review'' section 
of this notice, that were in the ordinary course of trade for purposes 
of determining appropriate product comparisons to U.S. sales. Where 
there were no sales of identical merchandise in the home market made in 
the ordinary course of trade to compare to U.S. sales, we compared U.S. 
sales to sales of the most similar foreign like product made in the 
ordinary course of trade, based on the characteristics listed in 
Sections B and C of our antidumping questionnaire. We have implemented 
the Court's decision in this case, to the extent that the data on the 
record permitted. Where there were neither identical nor similar 
matches reported by respondents, we have used CV as the basis for 
normal value.
    Comment 2: Respondents argue that the Department should base CV 
profit only on information pertaining to the POR as stated in section 
773(a)(4) of the Act. Further, respondents contend that in its 
preliminary results, the Department did not follow this methodology, 
but based CV on data from both within and outside the POR. They note 
that the Department used the cost of manufacturing (COM) and general 
and administrative expenses (G&A) for the POR, but calculated CV profit 
on all reported home market sales made in the ordinary course of trade. 
Finally, respondents argue that the approach taken by the Department 
was inaccurate and unfair because this approach encompassed the 26-
month home market window.
    Respondents contend that the purpose of this administrative review 
is to determine whether imports into the United States during the POR 
were sold at prices that would constitute dumping. Respondents assert 
that the statute requires that ``a fair comparison shall be made 
between the export price or constructed export price and normal 
value,'' and section 773(a)(1)(A) of the Act provides that in order to 
achieve a fair comparison with the export price or constructed export 
price, normal value shall be the price ``at a time reasonably 
corresponding to the time of the sale used to determine the export 
price or constructed export price.'' They argue that CV is a surrogate 
for price, and must be contemporaneous with the U.S. sale being 
compared. Thus, the Department should use information to calculate CV 
that corresponds to sales during the POR.
    Respondents state that they reported actual costs incurred for the 
POR for both COP and CV as required by the Department's questionnaire. 
However, in calculating CV profit for this case, the Department did not 
use POR data, but

[[Page 30187]]

used all reported home market sales, which covered the period January 
1995 through February 1997. Respondents argue that basing CV profit on 
market behavior and conditions outside the POR leads to distortions and 
is inappropriate, and the Department should revise its methodology for 
the final results to calculate CV profit based on home market sales in 
1996.
    Petitioners state that the Department's calculation of CV profit is 
consistent with the Act and past practice. Petitioners note that the 
calculation of CV profit is to be based on profits earned ``in 
connection with the production and sale of a foreign like product, in 
the ordinary course of trade, for consumption in the foreign country.'' 
See section 773(e)(2)(A) of the Act.
    Petitioners note that the home market sales identified in this 
review are consistent with the Department's established practice. The 
home market sales span the period from three months before the first 
U.S. sale to two months after the last U.S. sale in the POR. Thus, 
these sales fit the meaning of the Act. Petitioners contend that the 
fact that respondents reported and made U.S. sales in a 26 month period 
is not a flaw or unfair but merely reflects respondents' particular 
reporting period.
    Petitioners assert that the Department may not use one database of 
home market sales for its determination of normal value sales 
comparisons and another for its determination of CV profit.
    Furthermore, petitioners contend that, contrary to respondents' 
claim, the Department has traditionally interpreted the phrase ``at a 
time reasonably corresponding to the time'' found in section 
773(a)(1)(A) to mean a home market sale within the 90-60 day window. 
Since respondents accepted this window, petitioners argue that 
respondents must also accept this same database in identifying home 
market sales from which to calculate CV profit.
    Petitioners state that it is the Department's practice to rely on 
all home market sales reported in the foreign market sales database for 
determining normal value as the basis for calculating CV profit. 
Moreover, petitioners argue that the Department has used this approach 
in Notice of Preliminary Results of Antidumping Duty Administrative 
Review: Tapered Roller Bearings from Japan; 61 FR 25200 (May 20, 1996). 
Accordingly, petitioners assert that the Department should continue 
using respondents' reported home market sales as the basis for 
calculating CV profit.
    Department's Position: We disagree with respondents. In this case, 
the respondents reported home market sales based on the standard 60-
day/90-day contemporaneous window which, in this review, encompassed a 
26-month period. The Department has used the home market sales during 
this 26-month period to form the basis of its normal value calculation. 
Thus, in accordance with its normal practice, the Department calculated 
CV profit based on the contemporaneous sales data. In this case, U.S. 
sales span a period of 21 months. It would not be appropriate to limit 
the CV profit calculation to 12 months of home market sales, since this 
would not reflect profit on all contemporaneous sales.
    The fact that we used costs based on a different period (in this 
case, 12 months) does not render our CV profit calculation 
inappropriate or unreasonable. The respondents only reported cost of 
manufacture and general administrative expenses for the 1996 calendar 
year (the POR) as the basis for costs of all reported home market 
sales. The respondents did not claim that the costs reported for this 
period were in any way unrepresentative of the costs incurred for sales 
throughout the 26-month period. In fact, these same cost figures formed 
the basis for COP in determining whether any of the home market sales 
made during the 26-month sales reporting period had been sold at below-
cost prices within the meaning of section 773(b) of the Act. Thus, it 
was not unreasonable for the Department to calculate CV profit using 
the same home market cost data that it used to test for below-cost 
sales.
    Further, if the respondents believed that for any reason the 
submitted costs were not representative of the 26-month period, they 
should have informed the Department that the 12-month costs used to 
calculate CV profit were not representative of its 26-month costs. 
Respondents knew from past experience that it is the Department's 
practice, when calculating CV profit based on reported home market 
sales, to calculate CV profit based on all reported contemporaneous 
home market sales. The respondents have accepted this approach in past 
administrative reviews (see Certain Stainless Steel Wire Rods from 
France: Final Results of Antidumping Duty Administrative Review, 61 FR 
47874 (September 11, 1996); Certain Stainless Steel Wire Rods from 
France: Final Results of Antidumping Duty Administrative Review, 62 FR 
7206 (February 18, 1997)) and have offered no compelling reason to 
alter it in this review.
    Comment 3: Respondents argue that in calculating CEP profit in the 
preliminary results, the Department inappropriately excluded non-arm's 
length home market sales used in the calculation of CEP profit. 
Respondents contend that this methodology is contrary to both the 
statute and the Statement of Administrative Action (SAA), and is a 
departure from the methodology used in the prior review.
    Respondents assert that section 772(f)(2)(C)(i) of the Act provides 
that CEP profit will be calculated based on expenses and profit for all 
sales in the United States and home market. Also, respondents note that 
the SAA states that ``the total profit is calculated on the same basis 
as the total expenses.'' See SAA at 155. Additionally, the SAA states 
that ``the total expenses are all expenses incurred by or on behalf of 
the foreign producer and exporter and the affiliated seller in the 
United States with respect to the production and sale of the first of 
the following alternatives which applies: (1) The subject merchandise 
sold in the United States and the foreign like product sold in the 
exporting country (if Commerce requested this information in order to 
determine normal value and the constructed export price).'' See SAA at 
154. Therefore, respondents argue that the statute and the SAA are 
clear that both the expenses used to allocate the profit to the U.S. 
sales, and the profit to be allocated, should be based on all sales of 
the subject merchandise in the United States and the foreign like 
product in the foreign market. Respondents maintain the statute does 
not contain any provision for disregarding any sales in the calculation 
of CEP profit; and maintain that disregarding any such sales would be 
contrary to section 772(f) of the Act.
    Respondents note that the Department's recent policy bulletin 
(``Calculation of Profit for Constructed Export Price'' Policy Bulletin 
No. 97/1 (``CEP Profit Policy Bulletin'')) is incorrect because the CEP 
profit calculation does not reflect actual profit or loss for actual 
market prices. Respondents maintain that section 772(f)(2)(D) of the 
Act states that ``actual profit'' represents the profit earned on all 
sales for which expenses were ``determined'' under section 
772(f)(2)(C), and section 772(f)(2)(C) states that total expenses are 
all expenses incurred with respect to the subject merchandise sold in 
the United States and the foreign like product sold in the home market 
if requested by the Department in order to determine normal value and 
constructed export price. Thus, because the Department

[[Page 30188]]

requested that respondents report all home market sales, and the Act 
states that the calculation of total actual profit and total expenses 
are made on the same basis, profits associated with non-arm's length 
sales must be included in determining actual profit.
    Respondents argue that excluding non-arm's length home market sales 
from the calculation of CEP profit distorts the calculation of total 
actual profit and is inconsistent with the statute and the SAA. 
Although the Department includes unprofitable sales to an unaffiliated 
party in determining CEP profit--even if the sales are not in the 
ordinary course of trade--respondents contend that the Department has 
no justification for excluding sales with an affiliated party 
(including profitable sales) only because these sales do not pass the 
Department's arm's length test. Therefore, respondents argue that the 
Department should base its calculation of CEP profit on all home market 
sales, including sales found not to be made at arm's length.
    Petitioners state that the Department should continue to exclude 
non-arm's length home market sales from its CEP profit calculation. 
Petitioners argue that the Department has carefully analyzed this issue 
in the past and has concluded that it would not be proper to consider 
the profit (or lack thereof) on non-arm's length sales when attempting 
to calculate total actual profit on CEP sales. Petitioners state that 
the Department provided several reasons for its decision in its ``CEP 
Profit Policy Bulletin.''
    Petitioners state that the Department properly recognized that non-
arm's length sales do not provide an indication of the actual profits 
associated with these sales. Thus, petitioners argue that relying on 
non-arm's length transfer prices affords respondents a chance to 
manipulate the profit calculations by shifting profit to downstream 
sales by affiliated customers. In order to avoid this manipulation, 
petitioners contend that the Department must exclude sales that are not 
at arm's-length prices from its calculation of CEP profit.
    Furthermore, petitioners assert that the Department's policy of 
excluding sales that are not at arm's length from its calculation of 
CEP profit is consistent with the Act because it requires the 
calculation of total actual profit. Consequently, since the Act 
recognizes that non-arm's length sales are not reliable indicators of 
normal value or input costs, then they also are not reliable for 
calculating actual profit.
    Department's Position: We agree with petitioners. As we stated in 
our CEP Profit Policy Bulletin, ``sales to affiliates made at non-arm's 
length prices . . . are excluded from the CEP profit calculation 
because they do not reflect actual market prices and, thus, do not 
represent actual profit (or loss).'' Further, the Department stated 
that ``non-arm's length sales are not a reliable indicator of `actual 
profit,' just as they are not treated as a reliable indicator of normal 
value or input costs.'' See sections 773(a)(5) and 773(f) of the Act. 
Moreover, the Department's Bulletin states that ``inclusion of non-
arm's length sales would inappropriately distort the calculation of 
total actual profit. Therefore, we include below-cost sales but exclude 
non-arm's length sales for purposes of computing sales revenues and 
expenses for CEP profit.''
    Comment 4: Petitioners argue that the Department made a fundamental 
legal error in determining a CEP offset was appropriate by identifying 
the level of trade of CEP sales on an adjusted basis while identifying 
the level of trade of home market sales on an unadjusted basis. 
Petitioners argue that the comparison is inaccurate and leads to the 
wrong conclusion that CEP sales were at a different and less advanced 
level of trade than the home market sales. Petitioners argue that if 
the Department were to look at the levels of trade for sales in the 
U.S. and home market on the same basis, and rely on the unadjusted 
starting price for both sales as the proper levels of trade, the 
Department would conclude that the U.S. and home market levels of trade 
are the same and that a CEP offset would not be necessary.
    Petitioners contend that the Department's position that the CEP 
level of trade is an adjusted price but the normal value level of trade 
is linked to the starting price is not supported by the statute. 
Section 772(b) of the Act states that CEP is ``the price the subject 
merchandise is first sold . . . to a purchaser not affiliated with the 
producer or exporter, as adjusted under subsections (c) and (d). 
Therefore, petitioners contend that the starting price for a CEP sales 
comparison is the price at which the product is sold to an unaffiliated 
purchaser. Additionally, petitioners assert that the statute defines 
normal value as the price at which the foreign like product is first 
sold, under a variety of terms and conditions which provide for the 
price to be adjusted. See sections 773(a)(1)(A) and 773(a)(1)(B). 
Moreover, petitioners contend that section 773(a)(6)(C)(iii) of the Act 
requires that normal value be adjusted for ``other differences in the 
circumstances of sale,'' between the CEP and normal value sale, which 
includes adjustments for the same types of expenses deducted from CEP.
    Accordingly, petitioners argue that it is not accurate for the 
Department to determine that CEP is a price that is exclusive of all 
selling expenses, since these expenses are required to be adjusted for 
pursuant to section 772(d) of the Act, but to describe normal value as 
a price that is inclusive of all selling functions and ignore the 
adjustments to normal value that are statutorily mandated by section 
773(a)(6) of the Act. The Department must consider levels of trade in 
the same manner in order to arrive at a fair comparison. Furthermore, 
petitioners contend that Congress intended for the Department to look 
at the sale to an unaffiliated purchaser, when examining CEP sales. See 
section 772(b) of the Act. Petitioners argue that a CEP transaction is 
between the foreign producer/U.S. affiliate, and the unaffiliated U.S. 
producer. Petitioners argue that the Department has ignored these 
transactions and has incorrectly focused on the adjusted CEP sale. 
Consequently, they argue the Department is examining a level of trade 
between a foreign producer and U.S. affiliate that is artificial.
    Respondents argue that the Department properly examined the CEP 
level of trade based on the price after adjustments under section 
772(d) of the Act. Respondents argue that in the preliminary results, 
the Department properly determined that its CEP sales to MAC (i.e., its 
U.S. super-distributor), were made at a different level of trade than 
home market sales (which were made to end-users).
    Respondents maintain that petitioners argument is the identical 
argument from the first and second administrative reviews in which the 
Department granted a CEP offset. In fact, the argument also has been 
considered and rejected by the Department, in other administrative 
proceedings and in its final regulations. See Antidumping Duties; 
Countervailing Duties; Final Rule, 62 FR 27296, 27414 (May 19, 1997); 
and Notice of Final Determination of Sales at Less Than Fair Value: 
Static Random Access Memory Semiconductors from Taiwan, 63 FR 8909, 
8919-8120 (February 23, 1998), Notice of Final Determination of Sales 
at Less Than Fair Value: Large Newspaper Printing Presses and 
Components Thereof, Whether Assembled or Unassembled from Japan, 61 FR 
38139, 38143 (July 23, 1996). Respondents maintain that the 
Department's position is clear with

[[Page 30189]]

regard to identifying the level of trade of CEP sales. The Department 
has stated ``in those cases where a level of trade comparison is 
warranted and possible, then for CEP sales the level of trade will be 
evaluated based on the price after adjustments are made under section 
772(d) of the Act . . . In every case decided under the revised 
antidumping statute, the Department has consistently adhered to this 
interpretation of the SAA and of the Act.'' See Final Results of 
Antidumping Duty Administrative Review, Dynamic Random Access Memory 
Semiconductors of One Megabit or Above from the Republic of Korea; 62 
FR 965, 966 (January 7, 1997). Therefore, respondents argue that the 
Department should continue its past practice of beginning its level of 
trade analysis for CEP sales after adjusting for U.S. selling expenses 
and profit, as required by the SAA and the statute. See SAA at 159, and 
section 772(d) of the Act.
    Department's Position: We disagree with petitioners. The Department 
is continuing its practice, articulated in section 351.412(c) of the 
new regulations (see 62 FR 27296, 27414), of making the level of trade 
comparisons for CEP sales on the basis of the CEP after adjustments 
provided for in section 772(d) of the statute.
    As we stated in the second administrative review (see Certain 
Stainless Steel Wire Rods from France: Final Results of Antidumping 
Duty Administrative Review, 62 FR 7206 (February 18, 1997) (``SSWR 
II'')) the starting price is not the basis for comparison for CEP 
sales. The comparison is based on the CEP, which is net of the CEP 
deductions (i.e., those deductions provided for in section 772(d) of 
the Act which are only applicable to CEP sales). The statute requires 
the Department to make comparisons between NV and EP or CEP to the 
extent practicable, at the same level of trade. See section 
773(a)(1)(B) of the Act. If the starting price is used to determine the 
level of trade for CEP sales, the Department's ability to make 
meaningful comparisons at the same level of trade (or appropriate 
adjustments for differences in levels of trade) would be severely 
undermined in cases involving CEP sales. Similarly, using the 
unadjusted price to determine the level of trade of both EP and CEP 
sales would result in a finding of different levels of trade for an EP 
and a CEP sale when, after adjustment, the selling prices reflect the 
same selling functions. Moreover, using the adjusted CEP for 
establishing the level of trade is consistent with the purposes of the 
CEP adjustment; to determine what the sales price would have been had 
the transaction between the producer and its U.S. affiliate qualified 
as an export price sale. Accordingly, we have followed our practice 
from the previous administrative review, which specifies that the level 
of trade analyzed for EP sales is that of the unadjusted price, and for 
CEP sales it is the level of trade of the price after the deduction of 
U.S. selling expenses and profit associated with economic activity in 
the United States pursuant to section 772(d) of the Act. Therefore, for 
the final results, the Department has continued to apply the level-of-
trade analysis from its preliminary results in this review.\1\
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    \1\ This approach was recently criticized by the Court of 
International Trade in Borden, Inc. v. United States, Slip Op. 98-36 
(March 26, 1998), at 55-59 (Borden) (rejecting the Department's 
practice of adjusting the CEP starting price pursuant to section 
772(d) of the Act prior to making the level of trade comparisons). 
The Department intends to appeal this decision and, thus, will 
continue to apply the methodology articulated in its new regulations 
(19 C.F.R. Sec. 351.412).
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    Comment 5: Petitioners argue that there are no differences in 
selling functions between the U.S. and home market sales. Consequently, 
even if the Department relies on an adjusted CEP to identify the U.S. 
level of trade, respondents are not entitled to a CEP offset. 
Petitioners maintain that the channels of distribution and the selling 
activities for home market sales made during the POR are comparable to 
the adjusted CEP sales.
    Petitioners note that they informed the Department that sales in 
the home market were predominantly through a different channel of 
distribution and involved fewer selling functions than the Department 
had examined in past reviews. In prior reviews, petitioners stated that 
respondents' sales were primarily through Ugine Service (i.e., channel 
2) and involved an extra layer of selling expenses when compared to 
direct home market sales (i.e.,  channel 1) or CEP sales, and it was 
the Ugine Service sales that respondents focused on to distinguish the 
level of trade of the CEP and the home market sales.
    Petitioners assert that they ran a test on the data which showed 
that sales through Ugine Service are not predominate in terms of home 
market sales for comparison. Petitioners noted that respondents 
identify selling functions associated with channel 1 home market sales 
but not with CEP sales, such as, customer sales contacts, technical 
services and administrative functions. Nevertheless, petitioners 
contend that the record demonstrates that the selling functions and 
expenses associated with sales to both home market channel 1 and the 
CEP sales, on an adjusted basis, are the same. Petitioners maintain 
that the indirect selling expenses and their magnitude are the same for 
both home market sales through channel 1 and CEP sales. Thus, 
petitioners argue there can be no difference between the levels of 
trade for home market channel 1 and CEP sales based on the intensity or 
nature of the expenses for both home market channel 1 and U.S. CEP 
sales, citing Professional Electric Cutting Tools from Japan: Final 
Results of Antidumping Duty Administrative Review, 63 FR 6891, 6895 
(February 11, 1998).
    Moreover, petitioners note that the Department did not deduct 
indirect selling expenses in calculating the adjusted CEP price. Thus, 
petitioners argue that the selling functions must still be considered 
as selling functions associated with the CEP sale in the level of trade 
analysis. Petitioners contend that the indirect selling activities and 
expenses incurred by respondents (i.e., MAC and Techalloy) in the U.S. 
do not replace the selling activities and expenses incurred in the home 
market, but provide an extra layer of functions and expenses in the 
U.S. market.
    Petitioners argue that the only difference in selling functions 
between the home market and the CEP sales is the indirect selling 
expenses associated with sales through channel 2 (Ugine Service). 
Petitioners maintain that these additional selling expenses cannot 
justify finding different levels of trade because the Department found 
that these additional selling expenses do not support a finding of 
different home market levels of trade between channel 1 and channel 2 
sales. Therefore, petitioners argue that the record does not establish 
any differences in selling functions between channel 1 home market 
sales and CEP sales, and there are insufficient differences in selling 
functions between channel 2 sales and CEP sales to justify different 
levels of trade.
    Respondents argue that they had different and fewer selling 
functions which were performed for the CEP sales than for home market 
sales to end-users, which are at a more advanced stage of distribution 
than the CEP sales. Therefore, respondents argue that pursuant to 
section 773(a)(7)(B) of the Act, the Department was correct in granting 
a CEP offset.
    Respondents state that petitioners mischaracterize the Department's 
analysis of a CEP offset. Respondents assert that in the first and 
second administrative reviews of this case, the Department examined and 
compared the selling functions performed by Imphy and Ugine-Savoie for 
sales to its

[[Page 30190]]

U.S. affiliate (i.e., MAC), and found the selling expenses in the home 
market to end-users were different than selling expenses in sales to 
MAC and involved different levels of trade. See Preliminary Results of 
Antidumping Administrative Review: Certain Stainless Steel Wire Rods 
from France, 61 FR 53199, 53201-53202 (September 11, 1996)(``SSWR I''). 
Specifically, the Department found that the record reflected that 
customer sales contacts, technical services, inventory maintenance, 
computer systems and other administrative functions were selling 
functions involved in home market sales to end-users and not in sales 
to MAC. The Department found these differences demonstrate a difference 
in level of trade. Respondents argue that the exact same selling 
functions exist in this review and more differences are apparent when 
the totality of selling functions are analyzed. Respondents assert that 
Imphy and Ugine-Savoie perform certain selling functions in the home 
market for direct sales, (e.g., suggesting product improvements, 
developing sales strategy, providing information on market potential 
and competitors, pricing, scheduling production and delivery, visiting 
customers/potential customers and receiving orders, promoting new 
products, etc.) but only to a limited extent or not at all, for CEP 
sales.
    Respondents assert that petitioners' argument that respondents' 
home market sales involved the same selling functions as CEP sales is 
the exact same argument from the first administrative review. 
Respondents argue that, in this administrative review, they have more 
responsibility for generating, administering and servicing sales to 
end-users in the home market than for U.S. sales to MAC. According to 
respondents, MAC's role as a super-distributor is to remove and assume 
virtually all of the risks and selling functions involved in selling to 
the U.S. market. Thus, these differences in selling functions support 
the Department's determination of two different levels of trade.
    Respondents argue that petitioners' allegation that there is no 
difference in indirect selling expenses incurred by Imphy and Ugine-
Savoie between home market channel 1 and CEP sales is a false 
allegation. Respondents state that they allocated their headquarters 
indirect selling expenses based on worldwide net sales revenue for the 
purpose of this administrative review, because respondents do not 
separately book selling expenses by market. Additionally, headquarters 
indirect selling expenses are difficult to separate by market. Any 
separation of these expenses could produce rough and potentially 
unverifiable estimates. Payroll expense is the predominant expense 
which is difficult to separate by market since many of the same 
headquarters personnel support sales to various markets. Nevertheless, 
respondents contend that this allocation does not negate the 
differences in the selling functions for sales to home market end-
users, compared to sales to MAC. Respondents maintain that in 
responding to the Department's questionnaire, they tried to avoid 
obtaining any advantage through their headquarters selling expenses, 
and should not be penalized for the documented and verified differences 
in selling functions between the two markets.
    Moreover, respondents argue that petitioners' argument that direct 
sales predominate in the home market is inaccurate because their 
analysis examined raw information, not what was actually used in the 
margin calculation. Analysis of the preliminary results shows that 
sales through Ugine Service predominated in the comparisons, 
particularly in comparisons to CEP. Respondents assert that this is 
important, because the Department calculates CV using home market 
selling expenses to derive a weighted average expense factor to add to 
the cost of manufacture, citing Department of Commerce, Import 
Administration Policy Bulletin, ``Treatment of adjustments and selling 
expenses in calculating the cost of production (COP) and constructed 
value (CV)'' (March 25, 1994). Respondents note that the selling 
expense factor included selling expenses attributable to sales through 
Ugine Service, which were greater than the selling expenses involved in 
direct sales. Lastly, respondents state that more than half of the CEP 
sales were compared to prices or CV reflecting the selling expenses of 
Ugine Service. Therefore, respondents argue that they are entitled to a 
CEP offset for comparisons to home market sales to end-users because 
the home market sales involve a different and more advanced level of 
distribution than sales to MAC and petitioners have not provided any 
evidence to reverse the level of trade analysis.
    Department's Position: We disagree with petitioners. We reviewed 
respondents' selling functions and activities, and found that no single 
selling function was sufficient to warrant a separate level of trade in 
the home market. Specifically, we analyzed the respondents' level of 
trade chart for the home market and found that only three selling 
functions differed between the two home market channels of trade 
(visiting customers/receiving orders, promoting new products, and 
contacting customers/preparing claim reports). Additionally, we found 
that the vast majority of the selling functions were either identical 
or only differed moderately in intensity (i.e., order evaluation for 
production of specific products, analyzing and paying warranty claims, 
pre-sale inventory, packing, post-sale warehousing, suggesting 
potential product improvements, developing sales strategy, providing 
information on market potential and competitors, pricing, scheduling 
production and delivery, follow-up on unpaid invoices, technical advice 
regarding use, general administrative support including personnel, 
advertising, computer systems and arranging freight and delivery). 
Therefore, we have determined that the selling functions reported for 
the home market channels of distribution are not different enough to 
warrant two levels of trade in the home market.
    To determine whether separate levels of trade exist between the 
U.S. market and home market, we examined the respondents' level of 
trade claims. In order to make this determination, we reviewed the 
selling activities associated with each channel of distribution. The 
Department compared EP sales to home market sales, and determined that 
sales were made at the same LOT (i.e., to end-users) in both markets. 
See May 7, 1997, Questionnaire Response, Exhibit 11.
    For CEP sales, consistent with our practice, discussed above in 
Comment 4, we consider only the selling activities reflected in the 
constructed price, i.e., after the expenses and profit are deducted 
under section 772(d) of the Act. Whenever sales are made by or through 
an affiliated company or agent in CEP situations, we consider all 
selling activities of both affiliated parties, except for those selling 
activities related to the expenses deducted under section 772(d) of the 
Act to determine the CEP level of trade.
    The record indicates that the following selling functions were 
performed for HM sales to end users (at varying levels of intensity) 
but are not reflected in CEP: developing sales strategy, providing 
information on market potential and competitors, order evaluation for 
pricing and production scheduling, promoting new products, following-up 
on unpaid invoices, providing technical services, and performing 
administrative functions.

[[Page 30191]]

See May 7, 1997, Questionnaire Response, Exhibit 11.
    The differences between the CEP level of trade and the home market 
level of trade are sufficient to constitute different levels of trade. 
We found that the data on the record did not allow the Department to 
determine whether the differences in levels of trade affect price 
comparability. Since there is only one home market level of trade which 
has no equivalent to the CEP level of trade, price differences between 
the relevant levels of trade can not be quantified. Further, the 
Department has determined that home market sales involved a more 
advanced stage of distribution (to end-users) as compared to 
respondents' CEP sales in the United States (MAC and Techalloy).
    Section 773(a)(7)(B) of the Act states that a CEP ``offset'' may be 
made when two conditions exist: (1) normal value is established at a 
level of trade which constitutes a more advanced stage of distribution 
than the level of trade of the CEP; and (2) the data available do not 
provide an appropriate basis for a level-of-trade adjustment.
    The Department has considered petitioners' argument that there is 
no difference between the home market channel 1 and CEP sales with 
regard to indirect selling expenses and we do not find it persuasive. 
Record evidence indicates that there are differences in selling 
activities between home market sales to end users and CEP sales. 
Notwithstanding these different activities, the indirect selling 
expenses reported by Imphy and Ugine-Savoie are the same for home 
market channel 1 and CEP. This does not mean, however, that the selling 
activities are the same for these two groups of sales. The amount of 
selling expenses in itself is not a dispositive indicator of whether 
different levels of trade exist. In this case, there clearly are 
sufficient differences in selling activities despite similar amounts of 
expenses.
    Comment 6: Petitioners argue that in calculating CEP, the 
Department failed to deduct all selling expenses incurred in selling 
the subject merchandise to the United States. Petitioners assert that 
the Department did not deduct certain selling expenses (i.e., indirect 
selling expenses and inventory carrying costs) that were incurred with 
respect to U.S. sales.
    Petitioners argue that section 772(d)(1) of the Act states that the 
Department is required to deduct all direct and indirect selling 
expenses ``incurred by or for the account of the producer or exporter, 
or the affiliated seller in the United States, in selling the subject 
merchandise.'' Additionally, petitioners maintain that the SAA states 
that indirect selling expenses are to be deducted from CEP, citing SAA 
at 824. Also, petitioners maintain that the Department should read the 
SAA, at page 823, to mean that it should deduct indirect selling 
expenses incurred by the producer with respect to U.S. sales of subject 
merchandise in the home market or expenses incurred in selling to its 
affiliated U.S. importer.
    Lastly, petitioners argue that the Court of International Trade 
upheld the Department's past practice of deducting indirect selling 
expenses incurred in the home market or in selling to an affiliated 
importer in the calculation of exporter's sales price (ESP), the 
predecessor to CEP. See Silver Reed America, Inc. v. United States, 683 
F. Supp. 1393 (1988). Also, petitioners note that the URAA did not 
substantively amend the CEP provision to alter the deductions from CEP 
as compared to ESP. In fact, petitioners argue the URAA was more 
explicit than the prior statute in requiring all selling expenses be 
deducted from CEP, citing section 772(d)(1) of the Act.
    Respondents argue that petitioners made the same allegations in the 
first and second administrative reviews of this proceeding and the 
Department has rejected the argument in both instances. Further, 
respondents contend that these expenses were not incurred with respect 
to U.S. sales.
    Respondents assert that in the first and second administrative 
reviews, the Department did not deduct indirect selling expenses 
incurred in France or inventory carrying costs imputed to the country 
of manufacture in determining CEP, and there is no new information in 
this review to cause the Department to reconsider its decision. 
Respondents argue that the Department decided this exact issue in the 
second administrative review, wherein the Department stated that 
section 772(d)(1) of the Act provided for the deduction of specified 
expenses incurred in selling in the United States; it did not provide 
for the deduction of indirect expenses incurred in the home market. See 
SSWR II, 62 FR at 7210. Therefore, respondents contend that pursuant to 
section 772(d)(1) of the Act, home market expenses are not properly 
deducted from the starting price in determining CEP and they do not 
represent expenses associated with economic activities occurring in the 
United States. See SAA at 153.
    Moreover, respondents assert that the Department's approach is 
consistent with its past practice and with section 351.402(b) of its 
new regulations. See Preliminary Results of Antidumping Administrative 
Review: Calcium Aluminate Flux from France, 61 FR 40396, 40397 (August 
2, 1996). Respondents note that section 351.402(b) indicates that the 
Secretary will deduct only expenses associated with a sale to an 
unaffiliated customer in the United States. Hence, the indirect 
expenses reported in the DINDIRSU field are expenses associated with 
selling to MAC, Imphy and Ugine-Savoie's affiliated reseller in the 
U.S., and are not deducted in the calculation of CEP. Additionally, 
respondents assert that home market inventory carrying costs for sales 
to the U.S. reported in the DINVCARU field are imputed inventory 
carrying costs related to selling to MAC. Respondents argue that 
deducting these expenses would be inconsistent with the statute. 
Finally, respondents argue that petitioners' citation to Silver Reed is 
not appropriate because, as the Department previously has found, 
``cases addressing pre-URAA practice are not applicable.'' See SSWR I, 
61 FR at 47882. Therefore, respondents argue that the Department should 
reject petitioners' arguments and not deduct these expenses in 
calculating CEP.
    Department's Position: We disagree with petitioners. As we stated 
in the final results of the first and second administrative review of 
this order (see SSWR I, 61 FR at 47874; SSWR II, 62 FR at 7206), the 
Department does not deduct indirect expenses incurred in selling to the 
affiliated U.S. importer under section 772(d) of the Act. Section 
772(d) of the Act is intended to provide for the deduction of expenses 
associated with economic activities occurring in the United States. See 
SAA at 823; see also, GATT 1994 Antidumping Agreement, article 2.4; see 
also, Final Results of Antidumping Duty Administrative Review; Certain 
Cold-Rolled Carbon Steel Flat Products from the Netherlands: 63 FR 
13204, 13212 (March 18, 1998).
    The Department's practice regarding deductions from CEP under 
section 772(d) of the Act is articulated in its new regulations. 
Section 351.402(b) of these regulations state that ``the Secretary will 
make adjustments for expenses associated with commercial activities in 
the United States that relate to the sale to an unaffiliated purchaser, 
no matter where or when paid.'' 62 FR 27296, 27411. Additionally, the 
Department's regulations state that ``the Secretary will not make an 
adjustment for any expense that is related solely to the sale to an 
affiliated importer in the United States.'' Id. The inventory carrying 
costs petitioners refer to are expenses related solely to the sale to 
the affiliated importer (i.e., MAC). Similarly, the indirect selling 
expenses

[[Page 30192]]

incurred in the home market do not represent expenses associated with 
economic activities in the United States. Therefore, for the final 
results, the Department has not deducted the indirect selling expenses 
and inventory carrying costs referred to by petitioners in its 
calculation of CEP.
    Comment 7: Petitioners argue that if the Department does not deduct 
certain selling expenses (i.e., indirect selling expenses and inventory 
carrying costs) from the CEP calculation, it may not deduct the same 
expenses from normal value through the CEP offset. Petitioners assert 
that the CEP offset is used to balance deductions for selling expenses 
made to CEP where there are different levels of trade. Petitioners 
maintain that certain indirect selling activities undertaken by Imphy 
and Ugine-Savoie in connection with their home market sales and CEP 
sales are the same. See Comment 5 above. Petitioners contend that 
because Department did not deduct indirect selling expenses and 
inventory carrying costs in the calculation of CEP, they should not be 
deducted from normal value as part of the CEP offset.
    Respondents argue that the Department's calculation of the CEP 
offset in the preliminary results is in accordance with the Act. 
Further, respondents contend that the CEP offset can include indirect 
selling expenses and inventory carrying costs incurred in the home 
market even if those expenses are not deducted from CEP. Respondents 
assert that there is no statutory or other basis to consider whether a 
particular home market indirect expense is also incurred with CEP 
sales. Moreover, respondents cite to section 773(a)(7)(B) of the Act 
and argue that the test is whether the home market indirect expenses 
are incurred on sales in the home market. On that basis, all of the 
indirect expenses incurred in the home market (i.e., indirect selling 
expenses for Imphy's and Ugine-Savoie's commercial departments 
(INDIRS1H), product liability premiums (PRLBPRMH), and inventory 
carrying costs (INVCARH)) should be taken into account in calculating 
the CEP offset for all home market sales. Additionally, respondents 
argue that the indirect selling expenses for Ugine Service (INDIRS2H) 
should be considered in calculating the CEP offset.
    Department's Position: We agree with the respondents. Section 
773(a)(7)(B) of the Act states that when the constructed export price 
offset is applicable, ``normal value shall be reduced by the amount of 
indirect selling expenses incurred in the country in which normal value 
is determined on sales of the foreign like product but not more than 
the amount of such expenses for which a deduction is made under section 
772(d)(1)(D).'' Accordingly, the statute directs the Department to make 
deductions for the CEP offset for home market indirect expense(s) 
incurred on sales in the home market. The statue does not require that 
the indirect selling expenses deducted from normal value be identical 
or comparable in nature to the direct or indirect selling expenses 
deducted from CEP.
    Section 351.412(f)(2) of the Department's new regulations similarly 
reflect the Department's practice that the amount of the CEP offset 
``will be the amount of indirect selling expenses included in normal 
value, up to the amount of indirect selling expenses deducted and 
determining constructed export price.'' 62 FR 27296, 27415. This 
regulation goes on to define indirect selling expenses as ``selling 
expenses * * * that the seller would incur regardless of whether 
particular sales were made, but that reasonably may be attributed, in 
whole or in part, to such sales.'' Id. These regulations are consistent 
with the Department's practice that the CEP offset is composed of home 
market indirect selling expenses and there is no requirement that the 
same or comparable types of expenses be deducted from CEP in order for 
the expenses to be included in the CEP offset. For these reasons, the 
Department has deducted all of the indirect expenses incurred in the 
home market in calculating the CEP offset for home market sales matched 
to CEP transactions.
    Comment 8: Petitioners argue that the Department should deny 
respondents' adjustment for negative billing adjustments for certain 
home market sales. Petitioners contend that respondents have failed to 
correct double-counting errors with regard to these billing adjustments 
and warranty costs in their revised questionnaire response, and to 
prove that billing adjustments were due to billing errors or link the 
billing adjustments to billing errors.
    Petitioners note that respondents stated in their July 28, 1997 
supplemental questionnaire response, that ``[f]or certain sales, Ugine-
Savoie erroneously reported the associated warranty claim as a billing 
adjustment.'' Also, petitioners note that the questionnaire response 
indicated that ``on the revised HM Sales File submitted with this 
response, the billing adjustment has been removed for these sales, as 
the claim was included within warranty expense.'' See July 28, 1997 
Supplemental Questionnaire Response at page 12. Thus, petitioners note 
that respondents acknowledged that certain warranty expenses were 
double-counted in their original response because certain billing 
expense adjustments were also reported as warranty expenses, and the 
billing adjustments were made to invoice prices (BILLADPH), not 
quantities (BILLADQH). Therefore, petitioners contend that respondents 
should have made corrections to the BILLADPH computer field. However, 
petitioners assert that respondents did not correct the double-counting 
error in their amended home market sales listing. See Petitioners' 
letter of December 4, 1997.
    Petitioners note that respondents stated the double-counting error 
was corrected in the amended home market sales listing because the 
double-counted amounts were removed from the BILLADQH field. See 
Respondents' letter of December 15, 1997 at pages 8-10. However, 
petitioners argue that the amounts reported under BILLADQH related to 
quantity adjustments for warranty claims, not the prices. Petitioners 
assert that removing the quantity amounts cannot correct the error of 
double-counting warranty expenses because the amounts associated with 
warranty claims are still reported in the invoice prices (i.e., 
BILLADPH) and warranty expenses. Therefore, petitioners argue the 
Department should deny respondents' claimed negative billing 
adjustments because they failed to correct the double-counting of 
billing adjustments and warranty expenses and did not provide the 
Department the information needed to correct the errors.
    Petitioners also argue that respondents have failed to demonstrate 
that the claimed billing adjustments were due to billing errors. 
Petitioners have identified examples of where billing adjustments took 
place for some sales but not others of the same product made on the 
same day.
    Respondents argue that petitioners wrongly asserted that 
respondents failed to correct the double-counting of reported warranty 
expense in its revised sales listing (i.e., July 28, 1997 supplemental 
questionnaire response) and failed to substantiate that the reported 
billing adjustments were due to billing errors or to link the billing 
adjustments to the billing errors. Respondents state that petitioners 
are confusing invoice revenue and invoice unit price. Respondents note, 
as stated in their December 15, 1997 letter to the Department, that 
billing revisions relating to warranty expense items involved 
adjustments to quantity (BILLADQH), rather than price (BILLADPH), and 
affected the QTYH

[[Page 30193]]

and BILLADQU fields. Respondents stated that they corrected errors in 
their billing adjustments and warranty expenses in their July 28, 1997 
supplemental response. To correct the errors, respondents made 
corrections to their BILLADQH and QTYH fields to correct the errors. 
The warranty field was not revised.
    Respondents contend that petitioners have not commented on or 
acknowledged their calculation example in their December 15, 1997 
letter which illustrated the correction of the double-counting. In 
reply to petitioners' identification of eight observations (which are 
four pairs of transactions) that further question respondents' billing 
adjustments, respondents state that for two pairs of the transactions, 
Imphy should have reported billing adjustments in the BILLADPH field, 
and that Imphy had a computer programming error that caused the 
omission of the billing adjustments from these sales. Additionally, 
respondents explain that this mistake was due to credit memos against 
certain invoice numbers resulting from calculating invoice price on the 
original invoices.
    Nevertheless, respondents argue that all of the other records 
alleged to be errors by petitioners are reported correctly. Respondents 
stated that for the other two pairs of observations that petitioners 
alleged included errors in billing adjustments to price, respondents 
provided the following explanations: one transaction reflected a 
special price adjustment granted by Ugine-Savoie, which the customer 
requested to meet a specific market condition, while the other 
transaction was a price adjustment that the customer requested. 
Therefore, respondents assert that petitioners have no basis to request 
the Department to deny any of the billing adjustments reported.
    Department's Position: We agree with respondents. The Department 
has examined the respondents' home market sales database, specifically 
the sales that petitioners alleged were double-counted with regard to 
billing adjustments and warranty expenses, and found that the billing 
adjustments had been revised and correctly reported. In its analysis, 
the Department examined respondents' July 28, 1997 supplemental 
questionnaire response, home market sales database, and letter of 
December 15, 1997. From the information on the record, we found that 
respondents had eliminated the billing adjustment quantity from the 
BILLADQH field which respondents used to report credit memos associated 
with warranty claims. In addition, we found that they subsequently 
revised the quantity reported in the QTYH field, increasing it by the 
amount that had been reported in the BILLADQH field. Further, the 
Department performed mathematical calculations on the relevant home 
market sales to ensure that respondents had corrected the double-
counting error. We found that respondents had indeed corrected their 
double-counting error, and found that their explanation that the 
double-counting error effected the invoice revenue and not the invoice 
price was consistent with the reported data.
    Additionally, the Department has determined that respondents have 
properly reported all of their billing adjustments. We examined 
respondents' December 15, 1997 letter and related home market sales and 
found that the alloy surcharge and billing adjustments were reported 
correctly. Therefore, we have determined that respondents have properly 
reported all of their billing adjustments with the exception of the two 
invoices (fifteen home market sales observations) that did not have 
adjustments reported due to a computer programming error. Respondents 
reported these errors in their case briefs. The information submitted 
regarding the correction of these errors constituted new factual 
information which was untimely submitted. Petitioners did not have an 
opportunity to comment on this new factual information which was 
submitted too late for consideration by the Department. For these 
reasons, the Department did not take this information into account for 
these final results.
    Comment 9: Petitioners argue that the Department incorrectly 
categorized certain U.S. sales as sales that were made outside the POR, 
and excluded these sales from its model match program. Petitioners 
state that the Department's computer program indicates that even though 
the subject merchandise of these sales entered the U.S. prior to the 
POR, the sales were made during the POR. Moreover, they contend that 
the Department's past practice has been to examine CEP sales during the 
POR, considering there is a significant lag between entry date and sale 
date for the CEP sales. See Gray Portland Cement and Clinker from 
Japan: Final Results of Antidumping Duty Administrative Review, 58 FR 
48826 (1993).
    The respondents did not comment on this argument.
    Department's Position: We agree with the petitioners. The 
Department incorrectly categorized certain U.S. sales as sales that 
were made outside the POR, and excluded these sales from its model 
match program. Therefore, for the final results, the Department has 
corrected its computer program to include these sales.
    Comment 10: Respondents argue that the Department incorrectly 
recalculated its reported home market credit expenses for sales with 
missing payment and shipment dates. In the preliminary results, 
respondents note that the Department stated that it intended to 
calculate the missing payment or shipment date based on the average 
time period between invoice date and payment or shipment date, 
respectively. Respondents argue, however, that the Department committed 
two programming errors in this recalculation. Therefore, respondents 
stated that the Department should correct its errors and provided 
programming language to fix the alleged errors.
    The petitioners did not comment on this argument.
    Department's Position: We agree with respondents and have corrected 
the home market credit expense calculation for sales with missing 
payment and shipment dates for the final results.
    Comment 11: Respondents argue that the Department did not include 
indirect selling expenses related to EP sales in the total expenses 
used to calculate CEP profit pursuant to section 772(d)(3) of the Act, 
because the Department set indirect selling expenses for EP sales to 
zero before calculating the CEP profit rate. Respondents maintain that 
the Department requested indirect selling expenses related to both EP 
and CEP sales, and the Department's recent policy bulletin on the 
calculation of CEP profit states that the calculation of total actual 
profit under section 772(f)(2)(D) includes all revenues and expenses 
from EP sales. Thus, indirect expenses related to EP sales should have 
been included in the expenses used to calculate CEP profit.
    The petitioners' did not comment on this argument.
    Department's Position: We agree with the respondents in part. We 
agree that the calculation of total actual profit under section 
772(f)(2)(D) of the statute includes all revenues and expenses 
resulting from the respondent's U.S. sales and home market sales. See 
Final Results of Antidumping Duty Administrative Review; Certain Cold-
Rolled Carbon Steel Flat Products from the Netherlands; 63 FR 13204, 
13211 (March 18, 1998). The Department, however, has not adopted the 
computer programming changes suggested by respondents. Instead, in the 
final margin program, the Department changed the definition of a 
variable (INDEXUS) to be

[[Page 30194]]

the sum of indirect selling expenses and inventory carrying costs 
incurred in the United States, and deleted another variable (INDEXPU) 
from the final margin program. For a complete listing of the changes 
the Department has made to its final margin program, please see the 
Department's analysis memorandum and final margin computer program.
    Comment 12: Respondents argue that the Department did not calculate 
CV profit consistent with its determination of the CV profit rate. 
Respondents assert that the Department calculated the CV profit rate as 
the ratio of total home market profit on above-cost sales to the sum of 
the total cost of manufacture, G&A, net financial expense, and packing 
expenses. However, the Department applied the CV profit rate to a 
larger base, in calculating the profit amount used to calculate profit 
for CV. Respondents maintain that the CV profit rate should be applied 
to the same expenses that were included in the denominator used to 
calculate the CV profit rate. Therefore, respondents state that the 
Department should correct its program to exclude direct and indirect 
selling expenses from the base to which the CV profit ratio was 
applied.
    The petitioners did not comment on this argument.
    Department's Position: We agree with respondents and have corrected 
this error for the final results.

Final Results of Review

    As a result of our review, we have determined that the following 
margins exist:

------------------------------------------------------------------------
                                                                 Margin 
          Manufacturer/exporter                Time period     (percent)
------------------------------------------------------------------------
Imphy/Ugine-Savoie.......................    1/1/96--12/31/96      7.46 
------------------------------------------------------------------------

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. Individual 
differences between United States price and normal value may vary from 
the percentages stated above. The Department will issue appraisement 
instructions directly to the Customs Service. The final results of this 
review shall be the basis for the assessment of antidumping duties on 
entries of merchandise covered by this review. For duty assessment 
purposes, we calculated an importer-specific assessment rate by 
aggregating the dumping margins calculated for all U.S. sales to each 
importer and dividing this amount by the total value of subject 
merchandise entered during the POR for each importer.
    Furthermore, the following deposit requirements will be effective 
upon publication of this notice of final results of review for all 
shipments of certain stainless steel wire rods from France entered, or 
withdrawn from warehouse, for consumption on or after the publication 
date, as provided for by section 751(a)(1) of the Act: (1) the cash 
deposit rates for the reviewed companies will be the rates for those 
firms as stated above; (2) if the exporter is not covered in this 
review, or the original 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 (3) the cash 
deposit rate for all other manufacturers or exporters will continue to 
be 24.51 percent for stainless steel wire rods, the all others rate 
established in the LTFV investigation. See Amended Final Determination 
and Antidumping Duty Order: Certain Stainless Steel Wire Rods from 
France (59 FR 4022, January 28, 1994).
    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 19 CFR 353.26 to file a certificate regarding the 
reimbursement of antidumping duties prior to liquidation or 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)) and 19 CFR 
353.33(c)(5).

    Dated: May 26, 1998.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 98-14759 Filed 6-2-98; 8:45 am]
BILLING CODE 3510-DS-P