[Federal Register Volume 63, Number 12 (Tuesday, January 20, 1998)]
[Notices]
[Pages 2959-2965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1278]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-423-805]
Certain Cut-to-Length Carbon Steel Plate From Belgium; Final
Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Final Results of Antidumping Duty Administrative
Review.
-----------------------------------------------------------------------
SUMMARY: On September 15, 1997, the Department of Commerce (the
Department) published the preliminary results of its 1995-96
administrative review of the antidumping duty order on cut-to-length
carbon steel plate from Belgium (62 FR 48213). This review covers one
manufacturer/exporter of the subject merchandise, Fabrique de Fer de
Charleroi, S.A. (FAFER), and its subsidiary, Charleroi (USA) for the
period August 1, 1995 through July 31, 1996.
EFFECTIVE DATE: January 20, 1998.
FOR FURTHER INFORMATION CONTACT:
Maureen McPhillips or Linda Ludwig, Office of AD/CVD Enforcement, Group
III, Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington,
[[Page 2960]]
DC 20230; telephone (202) 482-0193 or 482-3833, respectively.
SUPPLEMENTARY INFORMATION:
Background
On September 15, 1997, the Department published in the Federal
Register (62 FR 48213), the preliminary results of the 1995-96 review
of the antidumping duty order on certain cut-to-length carbon steel
plate from Belgium (58 FR 44164). At the request of petitioners, we
held a public hearing, which included a closed session for the
discussion of proprietary information, on November 18, 1997. The
Department has now completed this administrative review in accordance
with section 751 of the Tariff Act of 1930, as amended (the Act).
Applicable Statute and Regulations
Unless otherwise indicated, all citations to the statute are
references to the provisions effective January 1, 1995, the effective
date of the amendments made to the Tariff Act of 1930 by the Uruguay
Round Agreements Act (URAA). In addition, unless otherwise indicated,
all references to the Department's regulations are to 19 CFR part 353
(April 1, 1997).
Scope of the Order
The products covered by this administrative review constitute one
``class or kind'' of merchandise: certain cut-to-length carbon steel
plate. These products include hot-rolled carbon steel universal mill
plates (i.e., flat-rolled products rolled on four faces or in a closed
box pass, of a width exceeding 150 millimeters but not exceeding 1,250
millimeters and of a thickness of not less than 4 millimeters, not in
coils and without patterns in relief), of rectangular shape, neither
clad, plated nor coated with metal, whether or not painted, varnished,
or coated with plastics or other nonmetallic substances; and certain
hot-rolled carbon steel flat-rolled products in straight lengths, of
rectangular shape, hot rolled, neither clad, plated, nor coated with
metal, whether or not painted, varnished, or coated with plastics or
other nonmetallic substances, 4.75 millimeters or more in thickness and
of a width which exceeds 150 millimeters and measures at least twice
the thickness, as currently classifiable in the Harmonized Tariff
Schedule (HTS) under item numbers 7208.40.3030, 7208.40.3060,
7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000,
7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030,
7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, and
7212.50.0000. Included are flat-rolled products of nonrectangular
cross-section where such cross-section is achieved subsequent to the
rolling process (i.e., products which have been ``worked after
rolling'')--for example, products which have been beveled or rounded at
the edges. Excluded is grade X-70 plate. The HTS item numbers are
provided for convenience and Customs purposes. The written description
remains dispositive.
Analysis of Comments Received
We gave interested parties an opportunity to comment on the
preliminary results of review. The Department received briefs and
rebuttal briefs from the petitioners, Bethlehem Steel Corporation, U.S.
Steel Company, Inc., (a Unit of USX Corporation), Inland Steel
Industries, Inc., Geneva Steel, Gulf States Steel Inc. of Alabama,
Sharon Steel Corporation, and Lukens Steel Company, and the sole
respondent in this case, Fabrique de Fer de Charleroi. Based on our
analysis of the issues discussed in these briefs, we have changed these
final results of review from those published in our preliminary
results.
General Comments
Comment 1: The petitioners argue that the Department must deduct
actual antidumping and countervailing duties paid by respondents'
affiliated importers from the price used to establish export price (EP)
or constructed export price (CEP).
Department's Position: We disagree with petitioners. We continue to
adhere to the statutory interpretation articulated in the final results
of Certain Cold Rolled and Corrosion-Resistant Carbon Steel Flat
Products from Korea: Final Results of Antidumping Duty Administrative
Reviews (62 FR 18404), under which we do not make the deduction. The
Department's decision in that case not to make the deduction was
recently affirmed by the Court of International Trade (CIT), See Ak
Steel Corp. et al. v. United States, Slip Op. 97-160 (CIT, December 1,
1997).
Comment 2: The petitioners contend that the Department's duty
absorption determination in the preliminary results is generally flawed
for two major reasons.
First, petitioners assert that by inviting the parties to submit
new factual information after verification in order to rebut its
presumption that ``duties will be absorbed for those sales which were
dumped,'' the Department undermines the statutory and regulatory
requirement that it rely only on verified information in the Final
Results. In petitioners' view, allowing respondents to place
information on the record which cannot be verified places petitioners
at a distinct disadvantage, and is inconsistent with a recent ruling by
the Court of Appeals for the Federal Circuit. See Creswell Trading Co.
v. United States, 15 F.3d 10543, 1060 (Fed. Cir. 1994). They urge the
Department to abandon this poorly conceived method and to collect all
relevant duty absorption evidence at the same time as it collects
information necessary to complete its dumping analysis.
Second, petitioners believe the Department's methodology has the
potential to understate the extent to which antidumping duties were
absorbed. The Department's methodology, they affirm, can give the
casual reader the mistaken impression that the total amount of duties
absorbed was limited to the dumped sales included in the final
antidumping duty calculated. As the overall dumping margin is weight
averaged, petitioners contend, the true level of dumping, and thus of
duty absorption, is significantly greater than the overall margin. To
resolve this problem, petitioners argue that the Department should
state its duty absorption finding as the percentage of sales dumped
along with the average level of dumping for those sales (emphasis in
the original). For example, if five percent of a respondent's sales
were dumped, and the overall weighted-average dumping margin were forty
percent, the Department should state that the respondent absorbed
duties on five percent of sales at a margin of forty percent.
Department's Position: After careful consideration of petitioners'
views, we have left our duty absorption methodology unchanged from the
preliminary results.
Contrary to petitioners' contention that we violated the statute by
inviting submission of new factual information after verification, our
regulations allow us to invite submission of factual information from
parties at any time during a proceeding. If a party submits information
as a result of such an invitation, we afford all other interested
parties an opportunity to comment in writing on such information (see,
Sec. 353.31(a)). See Comment 6 for the Department's position on the
duty absorption issue as it relates specifically to FAFER. Moreover,
the statute and regulations do not require that all information
submitted to the Department be examined at verification.
[[Page 2961]]
See, Monsanto v. United States, 698 F. Supp. 275,281 (CIT 1988).
We believe the approach suggested by petitioners is inappropriate
and unreasonable for the following reasons: (1) A transaction-specific
determination on duty absorption is impractical because dumping margins
on individual transactions are ``business proprietary;'' (2)
Petitioners' approach would result in an artificially inflated duty
absorption percentage which would cause unnecessary confusion. In a
hypothetical case where, if only one sale were dumped out of one
hundred U.S. sale transactions, but at a margin of twenty percent,
petitioners apparently would have the Department determine that duty
absorption had occurred at a rate of twenty percent on one percent of
the sales. We find this approach inappropriate and not mandated by
either statute or regulation. Our analysis focuses on the entire POR.
We find that our methodology better represents absorption during the
POR.
Accordingly, for purposes of these final results, we have left our
duty absorption methodology unchanged.
Company-Specific Comments
Comment 1: The petitioners claim that total facts available is
warranted in this case because the ultimate ownership of FAFER and the
full extent of the company's affiliations remain largely unknown
despite the Department's repeated requests for such information. The
petitioners contend that party affiliation can affect every aspect of
the Department's analysis, including the arm's-length test, model
matching, and the sales-below-cost test. Therefore, the petitioners
request that the Department employ total facts available for the final
results.
The petitioners note that in the preliminary results the Department
found that FAFER is affiliated to a steel service center to which it
sold subject merchandise during the POR. According to petitioners,
FAFER's refusal to report downstream sales of this reseller violated
the Department's explicit instructions in its questionnaire not to
report sales to affiliated resellers in the home market, but instead to
report ``downstream sales,'' i.e., ``the resales by the affiliates to
unaffiliated customers.'' In addition, the petitioners claim that FAFER
failed to contact the Department immediately, as instructed, if it
would be unable to report downstream sales as requested.
The petitioners point out that in its response to the Department's
supplemental questionnaire, FAFER once again failed to report the
requested downstream sales data, but claimed that the service center
``must * * * be considered as an unaffiliated customer'' because FAFER
is only a minor shareholder of {the service center} and as a result has
no control on it.'' See FAFER's January 13, 1997 Letter to the
Department of Commerce at 12-13. The petitioners argue that FAFER's
persistent attempts to obscure the true nature of its corporate
structure compelled the Department to make an adverse inference with
regard to the level of the Boel family's equity holdings in FAFER and
consequently, FAFER's sales to this customer were subjected to and
failed the arm's-length test. Furthermore, the petitioners claim that
the egregious nature of FAFER's refusal to provide the requested
information is compounded by the fact that some of the information in
question ultimately has proven to be publicly available from other
sources.
The petitioners state that the Department has, in the past,
determined that the application of facts available is warranted in
certain instances in which a respondent fails to report downstream
sales. For example, in Certain Cold-Rolled Carbon Steel Flat Products
from Argentina, 59 FR 37062, 37077 (July 9, 1993), the petitioners
state that ``when the respondents could not, or would not, report
downstream sales, we applied margins based on BIA to any U.S. sale
matched only to a sale to a related reseller in the home market that
failed the arm's-length test.'' The petitioners believe that such an
approach should be used in this case.
The petitioners acknowledge that the Department may exempt
respondents from reporting downstream sales if they are ``unable'' to
obtain this information, but contend that FAFER has not met this
burden. In fact, according to the petitioners, FAFER should have been
able to provide the requested data because FAFER and the service center
are affiliated not only through equity holdings, but also through
extensive overlapping membership of their boards of directors and
through family groupings.
Consequently, the petitioners recommend that the Department make an
adverse inference and employ total facts available, using a dumping
margin of 42.64 percent, the highest margin alleged in the original
petition; or, in the alternative, the margin of 13.31 percent from the
less-than-fair-value (LTFV) investigation.
The respondent counters that there is no statutory provision
requiring the Department to use the downstream sales of an affiliated
reseller, and petitioner fails to cite any legal support for any
requirement on the Department to do so, particularly where the finding
of affiliation is one based on facts available in the first instance.
Moreover, the respondent contends that the Department has already
resorted to facts available in determining that the steel service
center is an affiliated reseller in the home market, and has therefore
already acted in a manner adverse to respondent's interests (since this
allowed the Department to conduct the arm's-length test, which led to
the elimination of all identical matching home market sales to that
service center). In FAFER's opinion, the Department should dismiss the
petitioners' request that we resort to total facts available because
FAFER did, in fact, cooperate with the Department to the fullest extent
possible, reporting downstream sales to at least one affiliated
reseller. Finally, FAFER maintains that it did not have the authority
to obtain downstream sales data from the service center in question.
Department's Position: We have determined that FAFER and the steel
service center to which FAFER sold subject merchandise during the POR
are affiliated by means of Boel family control, pursuant to section
771(33) (see, Certain Cut-to-Length Carbon Steel Plate from Belgium;
Preliminary Results of Antidumping Duty Administrative Review (62 FR
48213)).
Section 776(b) of the Act requires that if an interested party
fails to cooperate by not acting to the best of its ability to comply
with the Department's request for information, the Department may use
an adverse inference in selecting from the facts otherwise available.
Thus, we may resort to adverse facts available in response to FAFER's
failure to report downstream sales unless FAFER establishes that it
could not compel its affiliate to report those downstream sales (cf.,
Notice of Final Results and Partial Recission of Antidumping Duty
Administrative Review; Roller Chain, Other Than Bicycle, From Japan (62
FR 60472, 60476) (November 10, 1997)). Although FAFER claims that it
could not compel its affiliated customer to provide downstream sales
information, we cannot accept this claim based solely on the
information FAFER has provided. Respondent has the burden of proof to
show that it cannot compel the reporting of downstream sales. However,
recognizing that the Department did not inform FAFER of certain
deficiencies in its attempt to establish such a claim, we have elected
not to use adverse facts available.
As the result of our conclusion that FAFER and the steel service
center were indeed affiliated, we applied our arm's-length test and
found that sales to the
[[Page 2962]]
affiliated customer, the steel service center, were not made at arm's-
length prices, i.e., at prices comparable to prices at which the
respondent sold identical merchandise to unaffiliated customers. In
addition, based on the Department's previous determination to disregard
sales made at below the cost of production (COP) in the original LTFV
investigation, we had reasonable grounds to believe or suspect that
sales of the foreign like product under consideration for the
determination of NV in this review may have been made at prices below
the COP, as provided by section 773(b)(2)(A)(i) of the Act. Therefore,
pursuant to section 773(b)(1) of the Act, we initiated a COP
investigation of sales by FAFER in the home market. The results of the
sales-below-cost test revealed that the remaining home market sales to
unaffiliated parties which provided contemporaneous matches with the
U.S. sales, failed the sales-below-cost test and could not be used for
the calculation of normal value (see, Certain Cut-to-Length Carbon
Steel Plate from Belgium: Preliminary Results of Antidumping Duty
Administrative Review (62 FR 48213)). Therefore, in accordance with
section 773(a)(4) of the Act, we have continued to disregard all home
market sales and have used constructed value as the basis for normal
value for these final results.
Comment 2: Although the petitioners do not dispute that the
commission that FAFER paid to its agent in connection with U.S. sales
represents a reasonable proxy for FAFER's unreported U.S. indirect
selling expenses, they do object to the commission amount applied by
the Department in its margin calculation.
The petitioners state that since FAFER did not provide any
documents regarding its commission payments to Charleroi USA, the
Department attempted to calculate the commission. However, the
petitioners maintain that the commission amount calculated by the
Department is plainly inconsistent with information on the record in
this review.
In addition, the petitioners assert that the disparity between the
U.S. commission amount and the home market commission amount
underscores their assertion that the figure used by the Department is
not an accurate measure of FAFER's U.S. commission expense.
The petitioners contend that the record provides sufficient
information to calculate properly the commission amount to deduct from
CEP. They note that in its response to the Department's questionnaire,
FAFER states that it pays its affiliate, Charleroi USA, a commission
calculated as a specific rate of ``the minimum prices mentioned in
FAFER's (sic) price guide.'' (see, Section A Response). They suggest
that this evidence on the record provides sufficient information for
the Department to calculate properly the commission amount to deduct
from constructed export price. The petitioners urge the Department to
use this commission rate applied to the price in the price guide as
facts available for FAFER's U.S. commission expense.
In its brief, FAFER rejects the petitioners' claim that the
Department used the incorrect amount when deducting from CEP the
commission paid to its affiliate, Charleroi U.S.A. Moreover, FAFER
maintains the petitioners' contention that the Department should use
the rate mentioned in its Section A response reveals a
misinterpretation of FAFER's commission policy on the part of
petitioners. FAFER contends that its Section A statement was a general
policy statement and, as indicated by the context of item 3.1 of the
Section A response, is subject to the circumstances under which sales
are actually negotiated, as well as to the resulting price. For the
particular sale at issue, FAFER states that the general policy on
commissions was superseded by the facts and circumstances of the sale,
and the Department, based upon the records of the sale reviewed at
verification, determined the commission actually paid per metric ton.
In FAFER's opinion, in light of the availability of specific sales
data, there is no need for application of a general policy which did
not take effect in the case of the sale in question.
Furthermore, in its rebuttal brief, FAFER states that upon further
investigation of the U.S. sales documentation, it has determined that
it did not pay any commissions to its U.S. affiliate during the POR and
no basis exists for imputing an amount to its one U.S. sale. FAFER
cites to U.S. Sales Verification Report, Exhibit 10 as proof that no
U.S. commission was paid. FAFER asserts that this evidence backs up its
submissions to the Department in which it unambiguously stated that its
affiliate, Charleroi U.S.A., received no commission on the subject
sale.
FAFER also asserts that the amount the Department used as the U.S.
commission expense in its preliminary results was probably, to the best
recollection of FAFER's counsel who was present at verification, a
service charge by transmitting banks. FAFER urges the Department not to
increase the U.S. commission amount, as petitioners request, but reduce
FAFER's commission amount to zero.
In rebuttal, the petitioners assert that FAFER is attempting to
downplay its stated policy regarding its commission payments to
affiliates and seeking to recast its commission policy to accommodate
the amount used in the preliminary results. The petitioners maintain
that, contrary to FAFER's contention, its section A response states
that commissions may be paid either by permitting the affiliated agent
to withhold a portion of the sales proceeds, or by issuance of a credit
note after the transaction is completed (see Letter from Barnes
Richardson & Colburn to the U.S. Department of Commerce, at 4 (October
21, 1996)). The petitioners maintain that this statement is evidence
that although the method of payment may vary from sale to sale, there
is no indication that the commission amount itself may vary. Therefore,
the petitioners reiterate their contention that the Department should
deduct the appropriate commission amount from CEP and not the
inaccurate amount used in the preliminary results.
Moreover, the petitioners note that FAFER's failure to report
indirect selling expenses incurred in the U.S. resulted in the
Department's use of the commission amount that FAFER paid its agent as
the facts otherwise available to fill this void in FAFER's data. While
the petitioners fully support the Department's determination to make
this adjustment to CEP as facts available for unreported U.S. indirect
selling expenses, they assert that the Department should use the
commissions that FAFER paid in connection with U.S. sales only if those
commissions represent a reasonable proxy for FAFER's unreported U.S.
indirect selling expenses. The petitioners point out that in order to
give effect to the purpose of the facts available provision of the
statute, the information selected as facts available must have
probative value, and must be sufficient to induce respondents to
respond fully to the Department's information requests in the future
(see, Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190-91
(Fed. Cir. 1990)). Should the Department erroneously determine that the
understated commission amount used in the preliminary results is
accurate, the petitioners suggest a more accurate amount for indirect
selling expenses derived from Charleroi USA's financial statements.
Department's Response: We agree with the respondent's contention
that further examination of the U.S. sales documentation obtained at
verification
[[Page 2963]]
reveals that FAFER did not pay any commission on the U.S. sale in
question. We also agree with petitioners that the U.S. commission
amount calculated by the Department and used in the preliminary results
as a proxy for FAFER's U.S. indirect selling expenses is inappropriate
and does not reflect an adverse inference. Such an inference is
justified by FAFER's refusal to comply with the Department's requests
for information on its U.S. indirect selling expenses.
The commission amount used by the Department in the preliminary
results was an unrealistically low commission rate and inconsistent
with the commission rate reported by FAFER in its Section A response at
4 (see the Department's October 8, 1997, Internal Memorandum from Helen
Kramer to the File). Moreover, FAFER acknowledges that the U.S.
commission amount used in the preliminary results probably represented
a service fee charged by transmitting banks (see, Respondent's Rebuttal
Brief, October 22, 1997 at 4, Footnote 8), not a commission amount.
Therefore, for these final results, while we have continued to use
FAFER's U.S. commission expense as facts available for FAFER's failure
to report U.S. indirect selling expenses (see, Analysis Memorandum from
Analyst to the File, January 12, 1998), we are using a different
estimate of this expense. We find that the commission rate FAFER
typically pays its U.S. affiliate is the most reasonable estimate of
U.S. indirect selling expenses (see, FAFER's Section A Response at 4).
Comment 3: The petitioners note that in its preliminary results,
the Department subtracted home market commissions from CV as a
circumstance-of-sale adjustment, but did not include the value of home
market commissions in the calculation of the CV itself. The petitioners
state that pursuant to statutory mandate, the Department's margin
calculation program should include all direct selling expenses in the
calculation of CV, including commissions. See 19 U.S.C.
Sec. 1677(e)(2)(A).
FAFER maintains that the filed designated general and
administrative (G&A) expenses already includes amounts reported in its
Section D response as home market commissions. According to the
respondent, the Department verified FAFER's reported G&A amounts which
included commissions, and to include them again in the calculation of
CV would result in double-counting. FAFER cites generally to Cost
Verification Report, March 24, 1997, at p. 26 and Cost Verification,
Exhibit 7a in support of its position.
Department's Position: We agree with petitioners. In its original
Section D submission of November 18, 1996, FARER noted that commissions
were included in the variable field G&A. In its submission of January
21, 1997, FAFER, on instructions from the Department, reported home
market commissions in a separate field in sections B and C. At the
sales verification, we determined that the commission field was zero
and the indirect selling expense field included only commissions paid
to its affiliate. At the cost verification, the Department reviewed
FAFER's G&A calculation and found it contained only general and
administrative items. At verification FAFER did not indicate that any
of the G&A expense categories included selling expenses. A review of
the Cost Verification Report and Exhibit 7a of that report, cited by
the respondent, supports the Department's conclusion that home market
commission expenses were not included in G&A expenses.
The absence of any verified account which can be tied to home
market commissions leaves us no choice but to conclude that home market
commissions are not included in FAFER's reported G&A expenses.
Therefore, we agree with petitioners that the Department erroneously
understated CV in its preliminary results by not including home market
commissions, pursuant to 19 U.S.C. Sec. 1677b(e)(2)(a), in its
calculation of CV. For these final results, we have added home market
commissions in calculating CV (see, Analysis Memorandum from Analyst to
the File, January 12, 1998).
Comment 4: The petitioners contend that in its calculation of CV
profit in the preliminary results, the Department did not determine the
total cost and the profit rate on the same basis. They maintain that
home market commissions were included in the denominator of the ratio
to determine that profit rate, but they were not included in the total
costs multiplied by the profit rate to determine the per unit amount of
CV profit. Therefore, they conclude that the Department should revise
its margin calculation program to ensure that commissions are treated
consistently throughout the Department's CV calculations.
FAFER counters that for the same reason it articulated in regard to
commissions (see Comment 3), the Department should disregard the
petitioner's request to recalculate CV profit.
Department's Position: We agree with petitioners. In order to
calculate CV correctly, we must include commissions in the total costs
multiplied by the profit rate in our calculation of CV profit.
Accordingly, we have changed the computer program for these final
results (see Comment 4 above).
Comment 5: The petitioners assert that certain of FAFER's claimed
home market indirect selling expenses were, in fact, commissions, as
indicated in the Department's Sales Verification Report at 11. In the
petitioner's opinion, it seems incredible that a company would not
incur any home market indirect selling expenses and, therefore, the
Department should rely on the facts available and increase FAFER's
reported SG&A expense, using the sales and cost of goods sold figures
from FARER's unconsolidated statements.
FAFER maintains that no basis exists for increasing its calculated
SG&A expense rate by the petitioner's randomly chosen percent because
(1) the petitioners provide no mathematical explanation for this
figure, and (2) any amounts that the Department would ordinarily deem
indirect selling expenses were included in FAFER's SG&A rate, which
reconciled with its financial statement at verification.
Department's Position: We agree with petitioners. As we stated in
our response to Comment 3 above, home market indirect selling expenses
are not included in the G&A filed or the indirect selling expense
field. In addition, despite the Department's request in its original
questionnaire and in its supplemental questionnaire of December 23,
1996, FARER failed to report any home market indirect selling expenses
or the absence of any indirect selling expenses.
Therefore, pursuant to section 776(A)(2)(A) of the Act, we have
employed the facts available for FAFER's home market indirect selling
expenses. As a proxy for the unreported home market indirect selling
expenses, we have added a percentage amount derived by deducting the
G&A amounts reported by FAFER from the SG&A value stated on FAFER's
unconsolidated financial statement, and then dividing the resulting
difference by the cost of goods sold (see, Analysis Memorandum, January
12, 1998).
Comment 6: FAFER notes that the Department in its preliminary
results found that the antidumping duties have been absorbed by FAFER
because the record did not permit a conclusion that the unaffiliated
purchaser in the United States will pay the ultimate assessed duty. The
Department invited interested parties to submit evidence to the
contrary within 15 days of the date of publication. FAFER states that
Charleroi U.S.A. received a letter from the unaffiliated purchaser
certifying that
[[Page 2964]]
company's irrevocable commitment to pay the antidumping duty at issue.
This letter was submitted (and served) in a timely manner, and should
put the issue to rest in FAFER's view. FAFER also requests that the
Department decrease the preliminary margin of 0.22% accordingly.
In rebuttal, the petitioners assert that the Department's
invitation to FAFER to submit new factual information after
verification is contrary to the Tariff Act of 1930, as amended, and the
Department's regulations requiring that the Department rely only on
verified information in its final results for this review. See 19
U.S.C. Sec. 1677m(i).
The petitioners believe that FAFER's submission purporting to
demonstrate that it did not absorb antidumping duties should be
rejected for the following reasons: (1) The document from the customer
to FAFER was dated September 29, 1997, only one day before it was filed
with the Department and, therefore, not part of the original terms of
sale; (2) the document is simply a one page letter, not notarized,
containing no indication that it is a contractual obligation; and (3)
the document cannot be relied upon because it has not been verified by
the Department.
In conclusion, the petitioners assert that the Department should
reject FAFER's submission for the reasons noted above, and reaffirm its
determination that FAFER and its affiliated importer absorbed
antidumping duties.
Department's Position: We agree with petitioners as to the results
of this duty absorption inquiry, but not as to the rationale. In our
preliminary results of review, at the request of petitioners, the
Department undertook a duty absorption inquiry. The Act provides for a
determination on duty absorption if the subject merchandise is sold in
the United States through an affiliated importer. In this case, the
reviewed firm sold through an ``affiliated'' importer within the
meaning of section 751(a)(4) of the Act. We preliminarily determined
that FAFER had absorbed the antidumping duties on one hundred percent
of its U.S. sales because we could not conclude from the record that
the unaffiliated purchasers in the United States had agreements to pay
the ultimately assessed duty.
We invited interested parties to submit evidence that the
unaffiliated purchasers in the United States have agreements to pay any
ultimately assessed duties charged to the affiliated importer,
Charleroi, USA. In a timely manner, FAFER submitted a statement from
the customer that he ``[would] irrevocably commit to make payments on
any antidumping duty with respect to [the] purchase of the [subject
merchandise], if such duty is assessed upon final determination by the
U.S. Department of Commerce in this 1995-1996 administrative review.''
See Attachment, dated September 29, 1997, to the Letter from FAFER to
the Secretary of Commerce, September 30, 1997.
Concerning the petitioners' objections to this response, as stated
above, we note that the submission from the respondent was timely filed
within the fifteen days following the publication of the preliminary.
Our regulations at 19 C.F.R. Sec. 351.31(b)(1) permit the Department to
ask for (and receive) information pertaining to an administrative
review at any time during a proceeding. Indeed, in an effort to obtain
more detailed information and a clarification of the respondent's
September 30, 1997 submission on duty absorption, we sent a
supplemental questionnaire to FAFER on November 26, 1997. The
petitioners had the opportunity to comment on the respondent's
supplementary response (see, Letter from petitioners to the U.S.
Department of Commerce, December 15, 1997).
After careful consideration of the evidence on the record, we have
determined that the submission from the respondent does not establish
that the unaffiliated customer will pay any ultimately assessed duty
(see, Certain Cut-to-Length Carbon Steel Plate from Belgium:
Preliminary Results of Antidumping Duty Administrative Review (62 FR
48213, 48217)) rendering the petitioners concerns about verification of
the submission moot. In addition, the petitioners concerns about the
timing of the alleged agreement between Charleroi U.S.A. and its
customer do not enter into our refusal to rely on the submission.
Petitioners have not stated any reasons why the timing of the alleged
agreement has a bearing on its enforceability. As for the petitioners'
objection to the fact that the ``letter'' was only one page and not
notarized, the Department does not consider length a criterion for
substance, and we note that the submission was properly certified
pursuant to Sec. 353.31(i) of the Department's regulations.
In the Preamble to 19 CFR part 351 et al., Antidumping Duties;
Countervailing Duties; Final Rule, we state that the Department did not
adopt in its final rules suggestions that it establish substantive
criteria regarding duty absorption because the Department ``will need
experience with absorption duty inquiries before it is able to
promulgate such criteria.'' Id. at p. 27318. In this spirit, we have
carefully considered the alleged agreement presented by Charleroi
U.S.A.'s customer that purportedly indicates that he will be
financially responsible for any duty assessed by the Department in this
administrative review. We have concluded, in this case, that the
evidence of record does not demonstrate the existence of an enforceable
agreement to pay the full amount of the assessed duties. The fact that
the customer has agreed ``to make payments on'' antidumping duties does
not provide for an enforceable agreement to pay all antidumping duties.
The alleged agreement does not state the exact number or amount of the
``payments'' the customer will make to the affiliated importer, nor
that the amounts paid by the unaffiliated purchaser will be for the
entire amount that is assessed by the Department. Finally, the
agreement contains no provision as to when the customer will make such
payments. Given these uncertainties, we cannot conclude that there is
an enforceable agreement for the unaffiliated purchaser to pay the
duties. Therefore, for these final results, we have continued to find
that antidumping duties have been absorbed by FAFER on one hundred
percent of its U.S. sales.
Results of Review
We determine that the following weighted-average margin exists:
------------------------------------------------------------------------
Margin
Manufacturer/exporter Period of review (percent)
------------------------------------------------------------------------
Fab. de Fer de Charleroi............. 08/01/95-07/31/96 13.75
------------------------------------------------------------------------
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. Individual
differences between export price and normal value may vary from the
percentage stated above. The
[[Page 2965]]
Department will issue appraisement instructions directly to the Customs
Service.
Furthermore, the following deposit requirements will be effective
upon publication of this notice of final results of review for all
shipments of certain cut-to-length carbon steel plate from Belgium
within the scope of the order entered, or withdrawn from warehouse, for
consumption on or after the publication date, as provided by section
751(a)(1) of the Tariff Act: (1) The cash deposit rate for the reviewed
company will be the rate listed above; (2) for previously reviewed or
investigated companies not listed above, the rate will continue to be
the company-specific rate published for the most recent period; (3) if
the exporter is not a firm covered in this review, a prior review, or
the original LTFV investigation, but the manufacturer is, the cash
deposit rate will be the rate established for the most recent period
for the manufacturer of the merchandise; and (4) for all other
producers and/or exporters of this merchandise, the cash deposit rate
of 13.31 percent, the ``all others'' rate, established in the LTFV
investigation, shall remain in effect until publication of the final
results of the next administrative review.
We will calculate importer-specific duty assessment rates on an ad
valorem basis against the entered value of each entry of subject
merchandise during the POR.
Notification of Interested Parties
This notice serves as a final reminder to importers of their
responsibility under 19 CFR Sec. 353.26 to file a certificate regarding
the reimbursement of antidumping duties prior to liquidation of the
relevant entries during this review period. Failure to comply with this
requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and subsequent assessment
of double antidumping duties.
This notice also serves as a reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR Sec. 353.34(d). Timely written
notification of return/destruction of APO materials or conversion to
judicial protective order is hereby requested. Failure to comply with
the regulations and the terms of an APO is sanctionable violation.
Timely written notification of the return/destruction of APO materials
or conversion to judicial protective order is hereby requested.
This administrative review and notice are in accordance with
Section 751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR
Sec. 353.22.
Dated: January 12, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 98-1278 Filed 1-16-98; 8:45 am]
BILLING CODE 3510-DS-M
