[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Notices]
[Pages 51421-51424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25245]
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DEPARTMENT OF COMMERCE
[A-428-810]
High-Tenacity Rayon Filament Yarn From Germany; 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 July 3, 1996, the Department of Commerce (the Department)
published the preliminary results of administrative review of the
antidumping duty order on high-tenacity rayon filament yarn from
Germany. The review covers one manufacturer/exporter of the subject
merchandise to the United States for the period of review (POR)
covering June 1, 1994 through May 31, 1995.
We gave interested parties an opportunity to comment on our
preliminary results. Based on our analysis of the comments and rebuttal
comments received from Akzo Nobel Faser AG, Akzo Nobel Industrial
Fibers Inc., and Akzo Nobel Fibers Inc. (collectively ``Akzo'') (the
respondent), and the North American Rayon Corporation (the petitioner),
we have corrected certain clerical errors in the margin calculations.
The final weighted-average dumping margin for the reviewed firm is
listed below in the section entitled ``Final Results of Review.''
EFFECTIVE DATE: October 2, 1996.
FOR FURTHER INFORMATION CONTACT: Matthew Blaskovich or Zev Primor, AD/
CVD Enforcement, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
5831/4114.
SUPPLEMENTARY INFORMATION:
The Applicable Statute
Unless otherwise indicated, all citations to the statute are
references to the provisions effective January 1, 1995, the effective
date of the amendments made to the Tariff Act of 1930 (the Act) by the
Uruguay Round Agreements Act (URAA). In addition, unless otherwise
indicated, all citations to the Department's regulations are to the
current regulations, as amended by the interim regulations published in
the Federal Register on May 11, 1995 (60 FR 25130).
Background
On July 3, 1996, the Department published the preliminary results
of administrative review of the antidumping duty order on high-tenacity
rayon filament yarn from Germany (61 FR 34792). The Department has now
conducted this review in accordance with section 751 of the Act.
Scope of the Review
The product covered by this administrative review is high-tenacity
rayon filament yarn from Germany. During the review period, such
merchandise was classifiable under Harmonized Tariff Schedule (HTS)
item number 5403.10.30.40. High-tenacity rayon filament yarn is a
multifilament single yarn of viscose rayon with a twist of five turns
or more per meter, having a denier of 1100 or greater, and a tenacity
greater than 35 centinewtons per tex. The HTS item numbers are provided
for convenience and Customs purposes. The written description remains
dispositive as to the scope of the product coverage. This review covers
one manufacturer/exporter of the subject merchandise and the period
June 1, 1994, through May 31, 1995.
Analysis of Comments Received
Comment #1: Respondent contends that the antidumping duty order
should be revoked upon completion of the instant review. Respondent
states that the URAA changed the de minimis standard to two percent.
Arguing that the URAA affects all reviews requested after January 1,
1995, respondent maintains that it is now eligible for revocation,
since it received margins of less than two percent for each of the last
three review periods. Respondent also emphasizes that it filed the
requisite certification pursuant to 19 CFR 353.25(b).
Respondent contends that the Agreement on Implementation of Article
VI of the General Agreement on Tariffs
[[Page 51422]]
and Trade 1994 (Antidumping Agreement) does not establish a clear-cut
definition for the term ``investigation.'' In particular, respondent
states that since an express limitation to the scope of the term
``investigation'' is not established in the Antidumping Agreement, it
contends that an ``investigation'' can be interpreted as applicable to
both the initial investigation phase as well as the review phase of
antidumping proceedings. Therefore it argues that the two percent de
minimis standard for ``investigations'' should apply to an antidumping
review proceeding. Moreover, respondent claims that the Department
should apply this law retroactively to the two earlier reviews, in
which case it will have three years of de minimis margins and
revocation of the order would be required. Finally, respondent contends
that such an approach would provide consistency between the
investigation and review stage of an antidumping proceeding.
The petitioner emphasizes that before the Department shall consider
revoking an antidumping duty order, a de minimis margin (defined as 0.5
percent or below) must be determined for three consecutive years.
Petitioner contends that the Department was correct in its
determination not to revoke the antidumping duty order with respect to
Akzo because, of the three reviews conducted, there has been only one
year during which Akzo received a margin of 0.5 percent or below (i.e.,
the administrative review period of June 1, 1993 through May 31, 1994).
Department's Position: We agree with petitioner that the 0.5
percent de minimis standard set forth in 19 CFR 353.6 continues to
apply to reviews. As a matter of domestic law, the statute and the
Statement of Administrative Action (SAA) which accompanied the passage
of the URAA are very clear that the new two percent de minimis standard
applies only to investigations initiated after January 1, 1995, the
effective date of the URAA. See sections 733(b)(3) and 735(a)(4).
The SAA clearly states that ``[t]he requirements of Article 5.8
apply only to investigations, not to reviews of antidumping duty orders
or suspended investigations.'' See H.R. Doc. No. 316, Vol. 1, Uruguay
Round Trade Agreements, Texts of Agreements, Implementing Bill,
Statement of Administrative Action, and Required Supporting Statements,
103rd Cong., 2nd Sess. (Sept. 27, 1994), at 845. The two percent de
minimis standard is applicable only to investigations: ``* * * in
antidumping investigations, Commerce [shall] treat the weighted-average
dumping margin of any producer or exporter which is below two percent
ad valorem as de minimis.'' SAA at 844. Likewise, ``[t]he
Administration intends that Commerce will continue its present practice
in reviews of waiving the collection of estimated cash deposits if the
deposit rate is below 0.5 percent ad valorem, the existing regulatory
standard for de minimis.'' SAA at 845 (emphasis added), see also 19 CFR
353.2(1) (an ``investigation'' is a distinct proceeding ending, inter
alia, on publication of an order).
Comment #2: Petitioner claims that the Department did not use the
proper shipment dates (as reported in respondent's supplemental
response) in the calculation of imputed credit costs incurred on those
sales made from Germany but shipped from the respondent's warehouse in
Canada.
Respondent states that credit expenses for these transactions were
indeed calculated based on the shipment dates submitted in the
supplemental response, in accordance with the Department's
questionnaire instructions, and not on the shipment dates originally
submitted by respondent.
Department's Position: We have confirmed that respondent correctly
calculated the credit expense on these transactions by using the dates
on which the subject merchandise was shipped from Germany. These dates
were included in respondent's supplemental questionnaire response.
Comment #3: Petitioner claims that the Department performed a
programming error in identifying the period of review. Petitioner
states that in order to remove from the margin analysis any U.S. sales
made outside of the POR, the beginning and ending period dates should
be June 1, 1994, and May 31, 1995, respectively.
Respondent disagrees with petitioner's claim. Respondent contends
that if petitioner's proposal is accepted, one of its export price (EP)
sales would be eliminated from the Department's margin analysis since
the date of sale for this transaction occurred prior to June 1, 1994,
whereas the merchandise entered the United States subsequent to that
date. In justifying why this particular sale should be included during
the POR, respondent contends that it adhered to the Department's
questionnaire instructions which state, ``Report each U.S. sale of
merchandise entered for consumption during the POR, except: (1) For EP
sales, if you do not know the entry dates, report each transaction
involving merchandise shipped during the POR.'' Therefore, although the
sale date fell outside the POR, respondent reported this transaction
due to the fact that the merchandise entered the United States during
the POR. Further, respondent claims that petitioner's proposed
correction to the margin program would not advance the objective stated
in the preamble to the Department's proposed regulations which is to
liquidate entire periods of review and to avoid tying entries to sales.
Department's Position: We agree with petitioner that we used
improper dates in our margin program to identify the period of review.
For these final results, we have corrected the dates to accurately
reflect the POR. However, we agree with respondent that we should
analyze the one U.S. sale made before the POR because the merchandise
was entered into the United States during the POR and because the sale
was not reviewed in the previous administrative review. Therefore, we
have included the sale in this review.
This decision comports with the Department's effort, as reflected
in the preamble to the Department's Proposed Rule 353.212, to promote
the objective of offering clarity and predictability to the antidumping
law by normally requiring that duties be assessed on merchandise
entering during a particular review period:
With respect to the use of duty assessment rates, the Department
believes that, except in unusual situations, we should assess duties
on subject merchandise entered during each review period. Therefore,
paragraph (b)(1) provides that the Department normally will
calculate a duty assessment rate based on sales reviewed, and will
apply those rates to entries made during the review period. In all
cases, this will result in the assessment of duties on merchandise
entered during the review period.
See Notice of Proposed Rulemaking and Requests For Public Comment, 61
FR 7308, 7316 (Feb. 27, 1996).
Comment #4: Petitioner contends that in the preliminary
results, the Department incorrectly classified an ``emergency sale'' as
an EP sale. Petitioner argues that since the subject merchandise was
sold to a U.S. customer after its importation into the United States,
this sale, which respondent terms as an emergency transaction, should
therefore be classified as a constructed export price (CEP) sale.
Petitioner argues that as a CEP sale, the Department is required to
deduct selling expenses incurred by Akzo's U.S. subsidiaries as well as
CEP profit in accordance with section 772(d)(3) of the Act. Further,
petitioner contends that credit expenses are understated, since the
Department did
[[Page 51423]]
not take into consideration credit expenses incurred during the period
beginning with the original date of shipment from Akzo's factory until
the ``emergency transaction'' sale date in the United States.
Respondent argues that what it describes as an ``emergency
transaction'' of approximately several thousand pounds of yarn cannot
be considered a CEP sale since the sale meets all the requirements of
an EP sale. Respondent explains that this particular subject
merchandise was sold to the original unrelated customer prior to
importation into the United States, the sales procedure involved with
this ``emergency transaction'' was no different from other EP sales
made. In the alternative, respondent states that the original sale of
this subject merchandise took place during the period of the second
administrative review, whereupon, the merchandise was stored in the
original customer's warehouse. In the subsequent review period,
respondent issued a credit note to that customer, canceling the first
sale, and resold the merchandise to another customer. The original
transaction was previously reviewed by the Department, and was covered
by liquidation instructions issued for that review. Therefore,
respondent states that the Department has the discretion to exclude the
``emergency transaction'' from this review.
Department's Position: We have determined to exclude the sale at
issue in this review from our margin calculations. Section 772 of the
Act defines both EP and CEP as those sales made to the first unrelated
buyer located in the United States. In this case, the original sale to
the first unrelated U.S. buyer occurred during the previous review. The
subject merchandise entered the United States during the previous POR.
The Department captured this sale of approximately several thousand
pounds of yarn in that review and subsequently assessed an antidumping
duty on this sale. Thus, the ``emergency sale'' in question, which
occurred during the instant review, is a resale of the merchandise
within the United States and not subject to additional assessment.
Therefore, we have excluded it from our analysis for these final
results.
Comment #5: Petitioner asserts that discrepancies exist between
Akzo's reported POR quantity of U.S. sales and U.S. Customs data.
Petitioner asserts that respondent was not able to convincingly
demonstrate the reason for the quantity discrepancy. Moreover,
petitioner states that the discrepancy is even larger than originally
measured, since petitioner did not include the amount associated with
the ``emergency transaction'' in its subsequent comparisons.
Respondent contends that because the Department conducted a
thorough verification of Akzo's reported sales, petitioner's comments
in this regard hold no merit. Respondent claims that the Department
substantiated the accuracy of its U.S. sales data base by reconciling
the reported quantities to the 1994 fiscal year and POR financial
statements. Further, respondent contends that according to petitioner's
own calculations, the allegation of underreporting of sales is proven
false. Respondent cites to petitioner's November 13, 1995 letter in
which petitioner acknowledged that it neglected to account for a
particular sale when matching respondent's reported data to U.S.
Customs data. Respondent contends that when these sales are added, and
the ``emergency transaction'' subtracted from its reported U.S. sales,
its total quantity for U.S. sales exceeds U.S. Customs data.
Department's Position: We agree with respondent. We conducted a
thorough verification of the quantity and value of respondent's U.S.
sales during verification and determined that respondent's reported
U.S. quantity and value amounts reconciled to its general ledger and
audited financial statement amounts. See Sales Verification Report, at
7.
Comment #6: Respondent contends that the Department's methodology
used for model matching is ineffective. Specifically, respondent
contends that certain models sold in its home market were not properly
identifiable as having identical contemporaneous matches to models sold
in the United States. Respondent proposes programming language which,
in its estimation, would remedy the matching problems. Petitioner does
not rebut respondent's comment.
Department's Position: Overall, our model matching methodology
properly identifies and matches identical merchandise in respondent's
home market with contemporaneous U.S. sales.
However, we detected a minor programing error which resulted in
certain sales not being appropriately matched. Therefore, we made
appropriate corrections to the program to remedy this error.
Comment #7: Both petitioner and respondent allege clerical errors
made in the margin program for the preliminary results. First,
petitioner claims that the Department erred in its foreign inland
freight and foreign brokerage currency conversion calculations.
Respondent concurs with petitioner's claim.
Second, respondent contends that the Department inadvertently
misspelled a particular variable in the margin program with the result
that home market and U.S. sales were not properly matched since the
months included within the extended period of review are not utilized
for matching purposes. Petitioner does not dispute respondent's
contention.
Department's Position: We agree with both petitioner and respondent
and have made the appropriate corrections to the margin program for
these final results.
Final Results of Review
As a result of the comments received, we have changed the results
from those presented in our preliminary results of review:
------------------------------------------------------------------------
Margin
Manufacturer/exporter (percent)
------------------------------------------------------------------------
Akzo Nobel Faser A.G., Akzo Nobel Industrial Fibers, Inc.,
Akzo Nobel Fibers, Inc. (Akzo)............................. 0.60
------------------------------------------------------------------------
The Department shall determine, and Customs shall assess,
antidumping duties on all appropriate entries. The Department will
issue appraisement instructions directly to Customs.
Furthermore, the following deposit requirements will be effective
for all shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of these
final results of this administrative review, as provided by section
751(a) of the Act: (1) The cash deposit rate for Akzo will be the rate
established above; (2) for merchandise exported by manufacturers or
exporters not covered in this review but covered in the original less
than fair value (LTFV) investigation or a previous review, the cash
deposit will continue to be the most recent rate published in the final
determination or final results for which the manufacturer or exporter
received a company-specific rate; (3) if the exporter is not a firm
covered in this review, or the original investigation, but the
manufacturer is, the cash deposit rate will be that established for the
manufacturer of the merchandise in these final results of review or the
less-than-fair-value (LTFV) investigation; and (4) if neither the
exporter nor the manufacturer is a firm covered in this or any previous
review, the cash deposit rate will be 24.58 percent, the ``all others''
rate established in the LTFV investigation.
[[Page 51424]]
These deposit requirements shall remain in effect until publication
of the final results of the next administrative review.
This notice also serves as final reminder to importers of their
responsibility 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 is the only reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with 19 CFR 353.34(d). Failure to
comply is a violation of the APO.
This administrative review and notice are in accordance with
section 751(a)(1)(B) of the Act and 19 CFR 353.22.
Dated: September 25, 1996.
Barbara R. Stafford,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-25245 Filed 10-1-96; 8:45 am]
BILLING CODE 3510-DS-P
