[Federal Register Volume 60, Number 220 (Wednesday, November 15, 1995)]
[Notices]
[Pages 57398-57399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28242]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-423-602]
Industrial Phosphoric Acid from Belgium; Preliminary Results of
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Preliminary Results of Antidumping Duty
Administrative Review.
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SUMMARY: In response to a request from the respondent,
Soci\1t\1 Chimique Prayon-Rupel (Prayon), the Department of
Commerce (the Department) is conducting an administrative review of the
antidumping duty order on industrial phosphoric acid (IPA) from
Belgium. The review covers one manufacturer, Prayon, and exports of the
subject merchandise to the United States during the period August 1,
1993, through July 31, 1994.
We preliminarily determine that no margin exists for Prayon for the
period August 1, 1993, through July 31, 1994. Interested parties are
invited to comment on these preliminary results. Parties who submit
argument in this proceeding are requested to submit with the argument
(1) a statement of the issue and (2) a brief summary of the argument.
EFFECTIVE DATE: November 15, 1995.
FOR FURTHER INFORMATION CONTACT: David Genovese or Joseph Hanley,
Office of Antidumping Compliance, Import Administration, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 20230, telephone: (202)
482-5254.
SUPPLEMENTARY INFORMATION:
Background
On August 3, 1994, the Department published a notice of
``Opportunity to Request an Administrative Review'' (59 FR 39543) of
the antidumping duty order on IPA from Belgium (52 FR 31439; August 20,
1987). On August 31, 1994, Prayon requested an administrative review.
The Department initiated the review on September 16, 1994 (59 FR
47609), covering the period August 1, 1993, through July 31, 1994. The
Department is conducting this review in accordance with section 751 of
the Tariff Act of 1930, as amended (the Act). Unless otherwise
indicated, all citations to the statute and to the Department's
regulations are references to the provisions as they existed on
December 31, 1994.
Scope of the Review
The products covered by this review include shipments of IPA from
Belgium.
This merchandise is currently classifiable under the Harmonized
Tariff Schedule (HTS) item number 2809.20. The HTS item numbers are
provided for convenience and U.S. Customs purposes. The written
description remains dispositive.
United States Price
In calculating United States Price (USP), the Department used
purchase price, as defined in section 772(b) of the Act. The Department
based USP on the delivered price to unrelated purchasers.
The Department made deductions, where appropriate, for commissions,
foreign inland freight, ocean freight, foreign inland freight and ocean
freight insurance, U.S. inland freight, U.S. brokerage fees and
European brokerage fees associated with U.S. sales. Additionally, we
adjusted USP for taxes that would have been assessed on merchandise had
it been sold in the home market.
In light of the Federal Circuit's decision in Federal Mogul v.
United States, CAFC No. 94-1097, the Department has changed its
treatment of home market consumption taxes. Where merchandise exported
to the United States is exempt from the consumption tax, the Department
will add to the U.S. price the absolute amount of such taxes charged on
the comparison sales in the home market. This is the same methodology
that the Department adopted following the decision of the Federal
Circuit in Zenith v. United States, 988 F. 2d 1573, 1582 (1993), and
which was suggested by that court in footnote 4 of its decision. The
Court of International Trade (CIT) overturned this methodology in
Federal Mogul v. United States, 834 F. Supp. 1391 (1993), and the
Department acquiesced in the CIT's decision. The Department then
followed the CIT's preferred methodology, which was to calculate the
tax to be added to U.S. price by multiplying the adjusted U.S. price by
the foreign market tax rate; the Department made adjustments to this
amount so that the tax adjustment would not alter a ``zero'' pre-tax
dumping assessment.
The foreign exporters in the Federal Mogul case, however, appealed
that decision to the Federal Circuit, which reversed the CIT and held
that the statute did not preclude Commerce from using the ``Zenith
footnote 4'' methodology to calculate tax-neutral dumping assessments
(i.e., assessments that are unaffected by the existence or amount of
home market consumption taxes). Moreover, the Federal Circuit
recognized that certain international agreements of the United States,
in particular the General Agreement on Tariffs and Trade (GATT) and the
Tokyo Round Antidumping Code, required the calculation of tax-neutral
dumping assessments. The Federal Circuit remanded the case to the CIT
with instructions to direct Commerce to determine which tax methodology
it will employ.
The Department has determined that the ``Zenith footnote 4''
methodology should be used. First, as the Department has explained in
numerous administrative determinations and court filings over the past
decade, and as the Federal Circuit has now recognized, Article VI of
the GATT and Article 2 of the Tokyo Round Antidumping Code required
that dumping assessments be tax-neutral. This requirement continues
under the new Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade. Second, the URAA explicitly amended the
antidumping law to remove consumption taxes from the home market price
and to eliminate the addition of taxes to U.S. price, so that no
consumption tax is included in the price in either market. The
Statement of
[[Page 57399]]
Administrative Action (p. 159) explicitly states that this change was
intended to result in tax neutrality.
While the ``Zenith footnote 4'' methodology is slightly different
from the URAA methodology, in that section 772(d)(1)(C) of the pre-URAA
law required that the tax be added to United States price rather than
subtracted from home market price, it does result in tax-neutral duty
assessments. In sum, the Department has elected to treat consumption
taxes in a manner consistent with its longstanding policy of tax-
neutrality and with the GATT.
No other adjustments were claimed or allowed.
Foreign Market Value
In calculating foreign market value (FMV), we used home market
price, as defined in section 773(a) of the Act, since quantities of
merchandise sufficient to provide a reasonable basis for comparison
were sold in the home market. Home market price was based on the
delivered or FOB plant price to unrelated purchasers in the home
market.
The Department made adjustments, where applicable, for inland
freight, inland insurance, and for differences in packing material and
credit. We also made an adjustment for home market indirect selling
expenses up to the amount of U.S. commissions deducted from the U.S.
price. Furthermore, since the respondent reported home market sales net
of consumption taxes, we calculated the amount of such tax and added
the amount back to FMV.
No other adjustments were claimed or allowed.
Preliminary Results of Review
As a result of our comparison of USP to FMV, the Department
preliminarily determines that no margin exists for Prayon for the
period August 1, 1993, through July 31, 1994.
Interested parties may request disclosure within 5 days of the date
of publication of this notice and may request a hearing within 10 days
of publication. Any hearing, if requested, will be held 44 days after
the date of publication of this notice, or the first workday
thereafter. Case briefs and written comments from interested parties
may be submitted not later than 30 days after the date of publication.
Rebuttal briefs and rebuttals to written comments, limited to the
issues raised in the case briefs and comments, may be filed not later
than 37 days after the date of publication. The Department will publish
the final results of this administrative review, including the results
of its analysis of any such written comments or hearing.
The Department shall determine, and U.S. Customs shall assess,
antidumping duties on all appropriate entries. The Department will
issue appraisement instructions directly to U.S. 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 the
final results of this administrative review, as provided by section
751(a)(1) of the Act: (1) the cash deposit rate for the reviewed
company will be that rate established in the final results of this
administrative review; (2) the cash deposit rate for merchandise
exported by manufacturers or exporters not covered in this review but
covered in a previous review or the original less-than-fair-value
(LTFV) investigation, will continue to be the rate published in the
most recent final results or determination for which the manufacturer
or exporter received a company-specific rate; (3) if the exporter is
not a firm covered in this review, earlier reviews, 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, earlier reviews, or the original investigation,
whichever is the most recent; and (4) the ``all others'' rate, as
determined in the LTFV investigation, will be 14.67 percent.
These deposit requirements, when imposed, shall remain in effect
until publication of the final results of the next administrative
review.
This notice serves as a preliminary 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 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.
Dated: November 6, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-28242 Filed 11-14-95; 8:45 am]
BILLING CODE 3510-DS-P
