32820 Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 / Notices

protective order is hereby requested.

Failure to comply with the regulations

and terms of the APO is a sanctionable

violation.

This administrative review and notice

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

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

CFR 353.22(c).

Dated: June 9, 1998.

Richard W. Moreland,

Acting Assistant Secretary for Import

Administration.

[FR Doc. 98–15876 Filed 6–15–98; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–405–071]

Viscose Rayon Staple Fiber From

Finland: Final Results of Antidumping

Duty Administrative Review

AGENCY: Import Administration,

International Trade Administration,

U.S. Department of Commerce.

ACTION: Notice of final results of

antidumping duty administrative

review.

SUMMARY: On December 10, 1997, the

Department of Commerce published the

preliminary results of its administrative

review of the antidumping duty finding

on viscose rayon staple fiber from

Finland. This review covers one

company, Kemira Fibres Oy, and the

period of March 1, 1996 through

February 28, 1997. 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 16, 1998.

FOR FURTHER INFORMATION CONTACT:

Laurel LaCivita or Alexander Amdur,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, N.W.,

Washington, D.C. 20230; telephone:

(202) 482–4740 or (202) 482–5346,

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

by the Uruguay Rounds Agreements Act

(URAA). In addition, unless otherwise

indicated, all references to the

regulations of the Department of

Commerce (Commerce) are as codified

at 19 CFR part 353, as they existed on

April 1, 1997. Since the new regulations

do not apply in these final results, we

should note that whenever the new

regulations are cited, they operate as a

restatement of the Department’s

interpretation of the Act. See !62 FR

27296 (May 19, 1997).

Background

On December 10, 1997, we published

in the Federal Register (62 FR 65063)

the preliminary results of administrative

review of the antidumping duty finding

on viscose rayon staple fiber from

Finland (44 FR 17156, March 21, 1979).

We received a case brief from the sole

respondent, Kemira Fibres Oy (Kemira),

on January 22, 1998, as amended on

January 30, 1998. The petitioners,

Courtauld Fibers Inc. and Lenzing

Fibers Corporation, submitted a rebuttal

brief on January 29, 1998. We held a

public hearing on February 5, 1998. The

Department extended the final results of

this review until June 8, 1998. We are

conducting this administrative review

in accordance with section 751 of the

Act.

Scope of the Review

The product covered by this review is

viscose rayon staple fiber, except

solution dyed, in noncontinuous form,

not carded, not combed and not

otherwise processed, wholly of

filaments (except laminated filaments

and plexiform filaments). The term

includes both commodity and specialty

fiber. This product is currently

classifiable under Harmonized Tariff

Schedule (HTS) item numbers

5504.10.00 and 5504.90.00. The HTS

numbers are provided for convenience

and customs purposes. The written

description of the scope of the finding

remains dispositive.

Scope Issues

Kemira claims that short-cut (LK)

fiber and fire retardant (VISIL) fiber are

not covered by the scope of the order,

while petitioners claim that they are

covered.

The Department included LK and

VISIL fibers within the scope of the

order for the purposes of the

preliminary results of this review (see

62 FR 65063). We stated in our notice

of preliminary results that because of

the complexity of the issues relating to

LK and VISIL fibers, we would

commence a scope inquiry to determine

whether LK and VISIL fibers are covered

by the scope of the order.

We asked interested parties to submit

comments on these scope issues, which

we analyzed pursuant to 19 CFR

353.29(d)(6). On matters concerning the

scope of an antidumping finding or duty

order, the normal bases for determining

whether a product is included within

the scope are the descriptions of the

product contained in the determinations

by the Department (or the Treasury

Department) and the ITC, the initial

investigation, the petition and, if

applicable, prior scope rulings. See 19

CFR 353.29(i)(1). If these descriptions

are not dispositive, the Department

refers to the criteria listed under 19 CFR

353.29(i)(2). By reference to the product

descriptions provided by the parties, as

well as the descriptions of the product

contained in the final determinations of

the Treasury Department and the ITC,

and the petition, the Department is able

to determine whether LK and VISIL

fibers are covered by the scope of the

order. Therefore, we have determined

that it is unnecessary to refer to the

additional factors of section 353.29(i)(2).

Based on our analysis under 19 CFR

353.29(i)(1), the Department has

determined that LK and VISIL fibers are

within the scope of the antidumping

order on Viscose Rayon Staple Fiber

from Finland. See June 8, 1998

Memorandum to Maria Harris Tildon

from Holly Kuga Regarding Whether

Short-Cut (LK) Fiber And Fire Retardant

(VISIL) Fiber Are Within The Scope of

the Finding (Order) on Viscose Rayon

Staple Fiber from Finland.

Analysis of the Comments Received

Comment 1: Kemira argues that the

Department erroneously reclassified

certain export price (EP) sales made

through its selling agent in the United

States as constructed export price (CEP)

sales. Kemira notes that all of the sales

at issue were made prior to importation

based on the date the order was

confirmed and shipped directly from

Kemira’s factory to the customer in the

United States. Kemira argues that its

selling agent in the United States,

Newco Fibres Company (Newco),

relocates (in part) routine selling

functions of the company from Finland

to the United States, and does not

perform any more selling functions in

the United States than those U.S.

entities in various cases in which the

Department concluded that the sales

were EP sales (see, Certain Stainless

Steel Wire Rods from France, 58 FR

68865, 68869, (December 29, 1993);

Certain Corrosion-Resistant Carbon

Steel Flat Products from Korea: Final

Results of Antidumping Duty

Administrative Review, 61 FR 18547,

18552, (April 26, 1996)). Kemira also

argues that the Department’s recharacterization of the sales at issue is
Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 / Notices 32821

contrary to the statute because Kemira

was the seller to the unrelated purchaser

in all transactions, and Newco did not

make any sales by or for the account of

Kemira.

The petitioners argue that the

Department’s reclassification of EP sales

to the United States made through

Newco as CEP sales was appropriate.

The petitioners note that the

Department relied on the statutory

definition of CEP, which is ‘‘the price at

which the subject merchandise is first

sold (or agreed to be sold) in the United

States before or after the date of

importation by or for the account of the

producer or exporter of such

merchandise.* * *’’ (See, section

772(b) of the Act .) The petitioners note

that Kemira acknowledges that ‘‘sales

activities in the United States market are

conducted by * * * Newco,’’ and argue

that Newco plays a major role in the

marketing of Kemira’s products,

including negotiating sales and

obtaining customer orders. The

petitioners further note that, although

Newco passes all sales documentation

to Kemira for confirmation, in actuality

such confirmations appear to be routine.

In fact, the petitioners note, it does not

appear that Kemira ever rejected any

order confirmations passed to it by

Newco during the period of review

(POR).

DOC Position: We agree with the

petitioners. In our preliminary results of

review, we examined the facts of this

case in light of the statute with respect

to EP and CEP sales. Section 772(b) of

the Act, as amended, defines CEP as

‘‘the price at which the subject

merchandise is first sold (or agreed to be

sold) in the United States before or after

the date of importation by or for the

account of the producer or exporter of

such merchandise or by a seller

affiliated with the producer or exporter,

to a purchaser not affiliated with the

producer or exporter, as adjusted’’

(emphasis added). Section 772(a) of the

Act defines EP as ‘‘the price at which

the subject merchandise is first sold (or

agreed to be sold) before the date of

importation by the producer or exporter

of the subject merchandise outside of

the United States to an unaffiliated

purchaser in the United States, or to an

unaffiliated purchaser for exportation to

the United States, as adjusted.’’

Furthermore, based on the

Department’s practice, we examine

several criteria for determining whether

sales made prior to importation through

a sales agent to an unaffiliated customer

in the United States are EP sales,

including: (1) Whether the merchandise

was shipped directly from the

manufacturer to the unaffiliated U.S.

customer; (2) whether this was the

customary commercial channel between

the parties involved; and (3) whether

the function of the U.S. selling agent

was limited to that of a ‘‘processor of

sales-related documentation’’ and a

‘‘communications link’’ with the

unaffiliated U.S. buyer. Where all three

criteria are met, indicating that the

activities of the U.S. selling agent are

ancillary to the sale, the Department has

regarded the routine selling functions of

the exporter as merely having been

relocated geographically from the

country of exportation to the United

States where the sales agent performs

them, and has determined the sales to

be EP sales. Where one or more of these

conditions are not met, indicating that

the U.S. sales agent is substantially

involved in the U.S. sales process, the

Department has classified the sales in

question as CEP sales. (See, e.g., Certain

Cold-Rolled and Corrosion-Resistant

Carbon Steel Flat Products from Korea:

Final Results of Antidumping Duty

Administrative Reviews, 63 FR 13170

(March 18, 1998).)

Our analysis of the facts indicates

that, while Kemira’s alleged EP sales

meet the first two conditions, they fail

to meet the third one. Kemira employs

Newco in the United States to negotiate

contracts with U.S. customers,

including the negotiation of prices, for

most of its U.S. sales. All contracts are

subject to acceptance by Kemira and

become effective upon Kemira’s order

confirmation. However, there have been

no cases to our knowledge in which the

terms of sale have not been accepted by

Kemira during this POR. Therefore, the

only difference that is apparent between

the claimed EP and CEP sales is the fact

that the claimed EP sales are shipped

directly to the US customer; all other

functions performed by Newco for such

sales are identical. Consequently, we

conclude that Newco, the agent in the

United States, is not merely a processor

of sales-related documentation or a

communications link, but is, in fact,

selling covered products in the United

States on Kemira’s behalf. Therefore,

under section 772(b), we concluded that

CEP treatment is also appropriate for

sales made in the United States prior to

importation by Newco, on behalf of the

producer (i.e, Kemira), to an unaffiliated

purchaser. We determine that EP

treatment is appropriate for Kemira’s

other sales made to the United States

before the date of importation which do

not require the employment of the sales

agent in the United States. We have no

further information that would lead us

to change our preliminary results with

respect to this issue; therefore, we have

made no changes for the final results of

review.

Comment 2: Kemira argues that the

Department should reconsider its

adverse facts available (FA)

determination concerning Kemira’s U.S.

sales of substandard merchandise.

Kemira maintains that the Department

misinterpreted Kemira’s statement in its

questionnaire response that it made

sales of second-quality merchandise in

the European market to mean that it did

not have sales in either Finland or the

United States. Kemira explains that it

did not report its United States and

Finnish sales of second-quality

merchandise because the Department

did not specify that such sales were

covered by the review and should be

reported.

In support of the Department’s

preliminary determination on this issue,

the petitioners assert that it was

appropriate for the Department to make

an adverse inference concerning

Kemira’s U.S. sales of second-quality

merchandise. The petitioners maintain

that Kemira did not report its home

market or U.S. sales of second-quality

merchandise despite the fact that the

Department twice requested Kemira to

report all sales of merchandise within

the scope of the order, and that there

was no indication that second-quality

merchandise was excluded from the

scope of the order. The petitioners also

note that it was not until the

Department conducted verification that

it discovered the existence of these

sales.

DOC Position: We agree with the

petitioners. Section 776(a)(2) of the Act

provides that if an interested party

withholds information that has been

requested by the Department, fails to

provide such information in a timely

manner or in the form requested,

significantly impedes a proceeding

under the antidumping statute, or

provides information that cannot be

verified, the Department shall use FA in

reaching the applicable determination.

Section 782(d) states that, if the

Department determines that a response

to a request for information does not

comply with the request, it shall

promptly inform the person submitting

the response of the nature of the

deficiency and shall, to the extent

practicable, provide that person with an

opportunity to remedy or explain the

deficiency.

In its original questionnaire of May

20,1997, the Department requested

Kemira to report all of its home market

and U.S. sales of subject merchandise in

accordance with the instructions in the

questionnaire. Kemira did not report its

home market and U.S. sales of second-
32822 Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 / Notices

quality and substandard merchandise.

On August 15, 1997, the Department

issued a supplemental questionnaire to

Kemira, again requesting Kemira to

report all sales of viscose rayon fiber

that are not specifically excluded from

the scope of the finding. In its response

to the supplemental questionnaire,

Kemira again did not report any home

market or U.S. sales of second-quality

and substandard merchandise. The fact

that Kemira reported the existence of

sales of substandard merchandise in

third countries, but, in response to two

specific requests for information, failed

to report such sales in the United States,

lead the Department to believe that no

such sales in the United States were

made during the POR. It was not until

verification that the Department

discovered the existence of such sales.

In both requests for information, the

Department advised Kemira that failing

to provide the requested information

may result in the application of FA. At

verification, the Department was able to

determine what percentage of Kemira’s

total U.S. sales were of second-quality

merchandise. We observed that Kemira

made a small quantity of second-quality

merchandise sales in both Finland and

the United States. (See Memorandum to

Holly Kuga from Laurel LaCivita et. al.

Regarding Kemira Fibres Oy: Report on

the Verification of Sales Information

Submitted in the 1996–1997 Review

(Verification Report) of January 12,

1998.) Given Kemira’s failure to report

these sales, the existence of which was

verified by the Department, we applied

FA to sales of second-quality

merchandise for the final results of

review, in accordance with section 776

of the Act.

Kemira’s argument that it did not

report its United States and Finnish

sales of second-quality merchandise

because the Department did not specify

that such sales were covered by the

review is unfounded. There is nothing

in the scope of the finding or the

questionnaire that would indicate that

second-quality merchandise is excluded

from the scope of the finding. It is not

required that the Department specify

which sales are covered by a review, so

long as the scope covers the

merchandise sold. As the scope does not

exclude second-quality merchandise (an

undisputed fact), Kemira is required to

report U.S. sales of such merchandise.

Failure to do so warrants the application

of FA.

Section 776(b) of the Act provides

that adverse inferences may be used

when a party has failed to cooperate by

not acting to the best of its ability to

comply with requests for information.

See also Statement of Administrative

Action (SAA) at 870. Kemira’s failure to

report the sales data requested by the

Department, despite the Department’s

indication regarding the consequences

of such an action, demonstrates that

Kemira has, to date, failed to cooperate

to the best of its ability in this review.

Thus, in selecting among the FA for

Kemira, an adverse inference is

warranted. Section 776(b) states that an

adverse inference may include reliance

on information derived from: (1) The

petition; (2) the final determination in

the LTFV investigation; (3) any previous

review under section 751 of the Act or

investigation under section 753 of the

Act; or (4) any other information placed

on the record. See also SAA at 829–831.

We applied as adverse FA the highest

calculated rate for Kemira from any

segment of the proceeding to the sales

of second-quality merchandise which

were not reported to the Department.

This rate of 8.7 percent is the margin

calculated for Kemira in both the

investigation and in the first period of

review (44 FR 2219, January 10, 1979

and 46 FR 19844, April 1, 1981).

Therefore, for the purposes of the

final results of review, the Department

made no changes to the methodology

applied in the preliminary results of

review.

Comment 3: Kemira contends that the

Department’s application of a

difference-in-merchandise (difmer)

adjustment to different sizes of VISIL is

unwarranted. It argues that there is no

difference in material cost or material

preparation between different sizes of

fiber. Kemira states that the only

potential cost difference would be in

spinning time or cutting time, and such

differences are minimal. Kemira argues

that its cost accounting system does not

make any distinction by fiber size, and

that it reported all costs for VISIL fiber

in accordance with its cost accounting

system. Kemira also argues that the

information it provided should have

been accepted by the Department

because the information was accurate,

consistent with Kemira’s recorded costs,

and fully verifiable. Therefore, Kemira

claims that the Department has no basis

for resorting to FA for the difmer

adjustment.

The petitioners contend that the

Department clearly acted within its

statutory authority in resorting to

adverse FA in making a difmer

adjustment for VISIL sales. The

petitioners note that Kemira took the

position in its questionnaire response

that the variable cost of manufacturing

(VCOM) for VISIL fibers sold in the

home market and to the United States

were the same, but at verification the

Department ‘‘observed that the time

required to spin other non-VISIL fibers

varied with the fiber length and linear

density.’’ (See December 1, 1997

Concurrence Memorandum at 15). The

petitioners also note that Kemira failed

to provide usable VCOM or total cost of

manufacturing (TCOM) data that would

allow the Department to make difmer

adjustments, and, as a result, the

Department made a difmer adjustment

to normal value (NV) for VISIL sales

based on adverse FA.

DOC Position: We agree with the

petitioners. Kemira failed to

appropriately report the information

needed to calculate a difmer adjustment.

Kemira reported the same VCOM and

TCOM for products with different linear

density and fiber length. The

Department observed at verification that

spinning and cutting time varied with

the fiber length and linear density of the

product (see December 1, 1997

Concurrence Memorandum at page 15).

Although Kemira claims that its cost

system does not acknowledge costs on

the basis of fiber length or fiber width,

and that any such differences are

minimal, it failed to produce any

evidence supporting that contention or

to explain what Kemira considers to be

a ‘‘minimal’’ difference. Kemira did not

provide any worksheets in its

questionnaire response on VISIL sales,

which was submitted only a few days

before the commencement of

verification, showing how the variable

cost figures were determined, or what

factors were considered in its

calculation of VCOM and TCOM, which

impeded us from pursuing verification

of this information. Furthermore,

Kemira’s claim contradicts a basic

principal of cost accounting that, given

identical labor and overhead rates on

the same production line, longer

production times on that line will result

in higher production costs.

In an attempt to educate ourselves on

the potential production cost differences

with respect to the fiber width of rayon

staple fiber, we spoke with a textile fiber

expert on March 26, 1998, concerning

the relationship between the fiber width

and spinning times. The expert

explained that there is a direct

relationship between the fiber width

and spinning time, such that if the

cross-sectional area of a fiber

(determined by the fiber width)

increases in size, the spinning time

decreases proportionally. Similarly, if

the fiber width decreases in size, the

spinning time increases by the same

ratio. (See the April 8, 1998

Memorandum from Laurel LaCivita to

the File Regarding The Relationship

Between Fiber Width and Processing

Time.) Record evidence indicates that
Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 / Notices 32823

the fiber widths of the VISIL products

sold in the United States and the home

market during the POR are at extreme

ends of the fiber-width spectrum.

Consequently, we disagree with

Kemira’s position that potential

spinning times and cost differences

attributable to differences in fiber

widths are insignificant in the

calculation of the difmer adjustment.

Therefore, while Kemira reported perunit costs allegedly calculated in

accordance with its cost accounting

system, such costs were not usable in

calculating a difmer adjustment for

VISIL sales because Kemira did not

adjust its production costs to reflect

differences in fiber width. Section

776(a)(1) of the Act provides that the

Department may use facts available in

situations in which the necessary

information is not available on the

record. The Department did not become

aware that Kemira failed to provide

VCOM and TCOM data for VISIL fiber

on the basis of fiber widths until

verification, and thus did not have

appropriate information on the record to

calculate the difmer adjustment.

Accordingly, to fill the gap, the

Department made a facts available

upward adjustment to the NV equal to

20 percent of the TCOM of the U.S.

model. This is the maximum upward

difmer adjustment to the NV in

accordance with 19 CFR 353.57 and

Policy Bulletin 92.2.

Accordingly, given that we have no

other information on the record on

which to base the difmer adjustment, we

have made no changes to our

preliminary results of review and have

applied to NV an adjustment equal to 20

percent of the TCOM of the U.S. model.

Comment 4: Kemira argues that the

Department erroneously deducted the

full amount of the commission expense

paid for VISIL sales in the United States,

when only a small portion of that

expense qualifies as a CEP deduction.

Kemira explains that the agency

agreement for VISIL sales in the United

States provided for declining ad

valorem commission rates on such sales,

with a ‘‘guaranteed commission’’ paid

in the event that the sales did not reach

a certain level or quota. Kemira notes

that the guaranteed commission was

only paid because the sales quota was

not achieved, and that it would have

been paid in the absence of any VISIL

sales at all. Consequently, Kemira

argues that the guaranteed commission

is not a commission or a direct expense,

but rather an indirect selling expense.

Kemira notes that the guaranteed

commission fits the definition provided

in the Appendix I, p. I–6 of the

Department’s questionnaire which

defines indirect expenses as ‘‘fixed

expenses that are incurred whether or

not the sale is made. . . .’’ Furthermore,

Kemira argues that the guaranteed

commission is a one-time expense

associated with initial U.S. marketing

efforts for VISIL, and is not an expense

that is ‘‘generally incurred’’ in selling

the subject merchandise. Therefore,

Kemira maintains that it is not a

deductible expense pursuant to section

772(d) of the Act, which provides that

in CEP transactions the U.S. price be

reduced by the amount of expenses

‘‘generally incurred’’ in selling the

subject merchandise in the United

States. Consequently, Kemira argues

that only the ad valorem portion of the

commission expense would be

‘‘generally incurred’’ on VISIL sales and

should be applied to these sales as an

indirect selling expense.

Kemira argues in the alternative that,

if the Department includes the

guaranteed commission in its

calculations, it should determine the

importer-specific assessment rate by

dividing the amount of the guaranteed

commission paid by the quantity of the

merchandise entered during the POR.

Kemira notes that based on the date of

order confirmation, the quantity of

VISIL products that entered the United

States during the POR was at least twice

as high as the quantity of VISIL sold

during the POR. Further, Kemira argues

that if the Department bases the

assessment rate for VISIL sales on the

margin determined for VISIL sales (and

not entries), the (unit) amount of the

guaranteed commission will be more

than doubled.

The petitioners argue that the

Department appropriately deducted the

guaranteed commission as a

commission for sales during the review

period. They note that three facts are

undisputed: (i) Kemira hired an

unrelated entity to act as Kemira’s sales

agent to market VISIL fiber in the

United States, (ii) Kemira agreed to pay

an ad valorem ‘‘commission’’ to its sales

agent, and (iii) Kemira agreed to

guarantee a minimum commission

payment to its sales agent, which

Kemira paid. The petitioners argue that

treating these payments as an indirect

selling expense, and not as a

commission, would directly contradict

the way in which the parties themselves

view the payment. The petitioners also

counter Kemira’s assertion that the

commission would have been paid in

the absence of any sales based on the

terms of the agency agreement.

The petitioners also disagree with

Kemira that the commission expense

should be allocated over all entries

during the review period, rather than

over all sales during the period, as this

would be a significant departure from

the Department’s traditional manner of

allocating commissions which relate to

sales based on an ad valorem rate.

DOC Position: We disagree with

Kemira that only a small portion of the

expenses paid under its agency

agreement for VISIL sales in the United

States should be classified as an indirect

selling expense and deducted from CEP

on this basis.

Commissions are payments to

affiliated or unaffiliated parties

providing services that relate to the sale

of merchandise, which are normally

treated as direct selling expenses if we

find that they are at arm’s length (for

commission paid to affiliated parties)

and directly related to the sale. In order

to determine whether a claim for a

commission paid to an unaffiliated

selling agent is a bona fide commission,

we examine the nature of the agreement

or contract between the producer and

selling agent which establishes the basis

for payment of the commission and for

services rendered in return for payment.

(See Revised Import Administration

Antidumping Manual, Chapter 8 at 35–

37, January 1998.)

In this case, our examination of the

terms of the agency agreement (contract)

between Kemira and its U.S. selling

agent shows that the agreement exists

for the sole purpose of making VISIL

sales in the United States during a

specific time period, and stipulates that

the agent be paid a commission based

on declining ad valorem rates in

accordance with the quantity of VISIL

sold, and a guaranteed commission in

the event U.S. VISIL sales did not reach

a certain level. (See verification exhibit

12 and footnote 16 on page 16 of the

December 1, 1997 Concurrence

Memorandum for a proprietary

description of the manner in which the

guaranteed commission is tied to the

U.S. sales value of VISIL products.)

Contrary to Kemira’s claim, the

guaranteed commission paid under this

agreement constitutes a direct selling

expense specifically attributable to

VISIL sales only and is not generally

incurred in selling the subject

merchandise in the United States.

Consequently, we agree with the

petitioners that the guaranteed

commission incurred on VISIL sales

represents a commission covering sales

during the review period. Therefore, we

have made no changes since the

preliminary results of review with

respect to this issue, and have allocated

all of the commission expense incurred

during the review period over the value

of sales made during the review period

in accordance with our normal
32824 Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 / Notices

methodology. Also, we will follow our

normal assessment practice of allocating

the amount of the uncollected dumping

duty over the entered value of sales

reported on the computer sales listing.

Comment 5: Kemira noted its

agreement with the Department’s

treatment of certain entries of LK and

VISIL fiber and supports our

preliminary determination to exclude

them from its margin calculation.

Kemira also believes that, if LK and

VISIL are found to be in the scope of the

order, these entries should nonetheless

be ‘‘liquidated without any assessment

of antidumping duties’’ since these

transactions were not reviewed.

DOC Position: As we stated in our

preliminary results of review, we

excluded three types of sales from our

calculations. First, we excluded zeropriced samples from our dumping

margin calculations. Second, we

excluded sales that were shipped to the

United States by a third-country reseller

if the respondent did not have any

reason to know at the time of sale that

the merchandise was destined for the

United States (for a detailed

explanation, see December 1, 1997

Concurrence Memorandum). Third, we

excluded sales that were entered and

liquidated prior to the reinstatement of

this antidumping order and resumption

of the suspension of liquidation on

February 22, 1996 (61 FR 6814). The

latter sales were excluded only if we

were able to link them directly to an

entry prior to the suspension of

liquidation (see, e.g., Certain Stainless

Steel Wire Rods From France: Final

Results of Antidumping Duty

Administrative Review, 61 FR 177,

(September 11, 1996)).

In our final results of review, we

made no changes in our methodology

for determining the weighted-average

margin. However, in accordance with

NSK Ltd., et al v. United States, 969 F.

Supp. 34 (CIT 1997), we have adjusted

our assessment calculations to ensure

that no duties are collected on the zeropriced samples that we excluded from

our calculations. We have included the

entered values of the zero-priced

samples in our calculation of the

assessment rates and set the dumping

duties due for such transactions to zero.

We have done this because U.S.

Customs will collect the ad valorem

duty-assessment rate on all entries of

subject merchandise regardless of

whether the merchandise was a zeropriced sample.

We have made no further adjustments

for the other sales that we excluded

from our margin calculations. Sales that

entered into the United States prior to

the reinstatement of this antidumping

order have been liquidated and all other

sales are subject to the order.

Comment 6: Kemira claims that the

Department erroneously failed to

convert domestic brokerage expense

(DBROKU) and packing expense

(USPACK) from Finnmarks (FIM) to

U.S. dollars (USD) for sales of LK fiber.

DOC Position: We agree and have

multiplied the domestic brokerage and

packing expenses for LK fiber sales to

the United States by the exchange rate

on the date of the U.S. sale to convert

these expenses to U.S. dollars for the

final results of review.

Comment 7: Kemira argues that the

Department failed to follow the model

match hierarchy described in the notice

of the preliminary results of review.

Specifically, it did not match sales to

the United States with the identical

merchandise sold in the home market in

the same month as, or the closest month

to, the month of the U.S. sales.

DOC Position: We agree. We

inadvertently failed to include the

variable WNDORDER in the modelmatch hierarchy in the computer

program. Consequently, the program did

not take the appropriate order of the

window period into account when

making its model-match selections.

Therefore, we have modified our

calculations to include this variable,

thereby implementing the model-match

hierarchy described in our notice of the

preliminary results of review.

Comment 8: Kemira maintains that

the Department incorrectly doublecounted the deduction for marine

insurance in its calculations by

including it in both the variables for

movement expense expressed in dollars

(USMOVT) and movement expense

expressed in foreign currency

(HMMOVT). Kemira argues that the

Department should eliminate marine

insurance from one of these two

variables.

DOC Position: We agree and have

eliminated marine insurance expenses

from the calculation of HMMOVT.

Final Results of Review

As a result of our review, we have

determined that the following margins

exist:

Manufacturer Margin

(Percent)

Kemira Fibres Oy ...................... 2.41

Assessment Rates

The Department shall determine, and

the Customs Service shall assess,

antidumping duties on all appropriate

entries. The Department will issue

appraisement instructions directly to

the U.S. Customs Service. The final

results of this review shall be the basis

for the assessment of antidumping

duties on entries of merchandise

covered by the final results of this

review and for future deposits of

estimated duties. For assessment

purposes, we calculated importerspecific assessment rates for viscose

rayon staple fiber. For both EP and CEP

sales, we divided the total dumping

margins (calculated as the difference

between NV and EP (or CEP)) for each

importer) by the entered value of the

merchandise. We will direct Customs to

assess the resulting ad valorem rates

against the entered value of each entry

of the subject merchandise by the

importer during the POR.

Furthermore, the following deposit

requirements will be effective upon

publication of this notice of final results

of review for all shipments of viscose

rayon staple fiber from Finland entered,

or withdrawn from warehouse, for

consumption on or after the publication

date, as provided by section 751(a)(1) of

the Act: (1) The cash deposit rate for the

reviewed company will be that

established in these final results of this

administrative review; (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 or a previous review or the LTFV

investigation, but the manufacturer is,

the cash deposit rate will be the most

recent rate established for the

manufacturer of the merchandise; and

(4) the cash deposit rate for all other

manufacturers or exporters will be 3.9

percent, the ‘‘new shipper’’ rate

established in the first review

conducted by the Department, as

explained below.

On March 25, 1993, the Court of

International Trade (CIT) in Floral

Trade Council v. United States, 822

F.Supp. 766 (CIT 1993) and FederalMogul Corporation v. United States, 822

F.Supp. 782 (CIT 1993) decided that

once an ‘‘all others’’ rate is established

for a company, it can only be changed

through an administrative review. The

Department has determined that in

order to implement the abovementioned decisions, it is appropriate to

reinstate the ‘‘all others’’ rate from the

LTFV investigation (or that rate as

amended for correction of clerical errors

or as a result of litigation) in

proceedings governed by antidumping

duty orders.

However, in proceedings governed by

antidumping findings, unless we are

able to ascertain the ‘‘all others’’ rate

from the Treasury LTFV investigation,
Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 / Notices 32825

the Department has determined that it is

appropriate to adopt the ‘‘new shipper’’

rate established in the first final results

of administrative review published by

the Department (or that rate as amended

for correction of clerical errors as a

result of litigation) as the ‘‘all others’’

rate for the purposes of establishing

cash deposits in all current and future

administrative reviews (see, e.g., Final

Results of Antidumping Duty

Administrative Review of Tapered

Roller Bearings, Four Inches or Less in

Outside Diameter, and Components

Thereof, From Japan, 58 FR 64720,

(December 9, 1993)).

Therefore, the ‘‘all others’’ rate

applied is the rate of 3.9 percent from

Viscose Rayon Staple Fiber From

Finland, Final Results of Administrative

Review of Antidumping Finding (46 FR

19844, April 1, 1981), the first review

conducted by the Department in which

a ‘‘new shipper’’ rate (or in this case, a

rate for all shipments of the subject

merchandise, including new shippers)

was established.

These deposit requirements, when

imposed, shall remain in effect until

publication of the final results of the

next administrative review.

This notice also serves as a reminder

to importers of their responsibility

under 19 CFR 353.26 to file a certificate

regarding the reimbursement of

antidumping duties prior to liquidation

of the relevant entries during this

review period. Failure to comply with

this requirement could result in the

Secretary’s presumption that

reimbursement of antidumping duties

occurred and the subsequent assessment

of double antidumping duties.

This notice also serves as a reminder

to parties subject to administrative

protective order (APO) of their

responsibility concerning the

disposition of proprietary information

disclosed under APO in accordance

with 19 CFR 353.34(d). Timely written

notification of return/destruction of

APO materials or conversion to judicial

protective order is hereby requested.

Failure to comply with the regulations

and the terms of an APO is a

sanctionable violation.

This determination is issued and

published in accordance with sections

751(a)(1) and 777(i)(1) of the Act.

Dated: June 8, 1998.

Robert S. LaRussa,

Assistant Secretary for Import

Administration.

[FR Doc. 98–15872 Filed 6–15–98; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[A–533–502]

Certain Welded Carbon Steel Pipes

and Tubes From India; 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 February 9, 1998, the

Department of Commerce published the

preliminary results of administrative

review of the antidumping duty order

on certain welded carbon steel pipes

and tubes from India. The review covers

two manufacturers/exporters. The

period of review is May 1, 1996, through

April 30, 1997.

Based on our analysis of the

comments received, we have made

changes, including corrections of certain

inadvertent programming and clerical

errors, in the margin calculation.

Therefore, the final results differ from

the preliminary results. The final

weighted-average dumping margin is

listed below in the section entitled

‘‘Final Results of Review.’’

EFFECTIVE DATE: June 16, 1998.

FOR FURTHER INFORMATION CONTACT:

Davina Hashmi, at (202) 482–5760, or

Greg Thompson, at (202) 482–0410, of

the Import Administration, International

Trade Administration, U.S. Department

of Commerce.

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

CFR Part 353 (1997).

Background

On February 9, 1998, the Department

of Commerce (the Department)

published the Preliminary Results of

Administrative Review of the

Antidumping Duty Order on Certain

Welded Carbon Steel Pipes and Tubes

from India, 63 FR 6531. The review

covers two manufacturers/exporters.

The period of review (POR) is May 1,

1996, through April 30, 1997. We

invited interested parties to comment on

the preliminary results of review. At the

request of one respondent, Rajinder

Pipes Ltd. and Rajinder Steel Ltd.

(collectively called ‘‘RSL’’), we held a

public hearing on April 6, 1998. The

Department has conducted this

administrative review in accordance

with section 751 of the Act.

Scope of Reviews

The products covered by this review

include circular welded non-alloy steel

pipes and tubes, of circular crosssection, with an outside diameter of

0.372 inch or more but not more than

406.4 millimeters (16 inches) in outside

diameter, regardless of wall thickness,

surface finish (black, galvanized, or

painted), or end finish (plain end,

bevelled end, threaded, or threaded and

coupled). These pipes and tubes are

generally known as standard pipe,

though they may also be called

structural or mechanical tubing in

certain applications. Standard pipes and

tubes are intended for the low-pressure

conveyance of water, steam, natural gas,

air and other liquids and gases in

plumbing and heating systems, airconditioner units, automatic sprinkler

systems, and other related uses.

Standard pipe may also be used for light

load-bearing and mechanical

applications, such as for fence tubing,

and for protection of electrical wiring,

such as conduit shells.

The scope is not limited to standard

pipe and fence tubing or those types of

mechanical and structural pipe that are

used in standard pipe applications. All

carbon-steel pipes and tubes within the

physical description outlined above are

included in the scope of this order,

except for line pipe, oil-country tubular

goods, boiler tubing, cold-drawn or

cold-rolled mechanical tubing, pipe and

tube hollows for redraws, finished

scaffolding, and finished rigid conduit.

Imports of the products covered by

this review are currently classifiable

under the following Harmonized Tariff

Schedule of the United States (HTSUS)

subheadings: 7306.30.10.00,

7306.30.50.25, 7306.30.50.32,

7306.30.50.40, 7306.30.50.55,

7306.30.50.85, 7306.30.50.90. Although

the HTSUS subheadings are provided

for convenience and customs purposes,

the written description of the scope of

this proceeding is dispositive.

Changes Since the Preliminary Results

Based on our analysis of comments

received, we have made certain

corrections that changed our

preliminary results. A discussion of the

arguments raised in the case and

rebuttal briefs submitted to the