[Federal Register Volume 63, Number 177 (Monday, September 14, 1998)]
[Notices]
[Pages 49085-49089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24598]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-427-009]
Industrial Nitrocellulose From France: Final Results of
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce
ACTION: Notice of final results of antidumping duty administrative
review.
-----------------------------------------------------------------------
SUMMARY: On May 11, 1998, the Department of Commerce published the
preliminary results of administrative review of the antidumping duty
order on industrial nitrocellulose from France. The review covers
Bergerac, N.C. (formerly identified by the name of its parent company,
Societe Nationale des Poudres et Explosifs), and its affiliates for the
period August 1, 1996, through July 31, 1997.
We gave interested parties an opportunity to comment on the
preliminary results. Based on our analysis of comments received, we
have made a change in the margin calculations and corrected a
ministerial error. Therefore, the final results differ from the
preliminary results.
EFFECTIVE DATE: September 14, 1998.
FOR FURTHER INFORMATION CONTACT: William Zapf or Lyn Johnson, Import
Administration, International Trade Administration, U.S. Department of
Commerce, Washington, D.C. 20230; telephone: (202) 482-4733.
SUPPLEMENTARY INFORMATION:
The Applicable Statute and Regulations
Unless otherwise indicated, all citations to the Tariff Act of
1930, as amended (the Tariff 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 the regulations codified at 19 CFR Part 351 (62 FR 27295 (May 19,
1997)).
Background
On May 11, 1998, the Department of Commerce (the Department)
published in the Federal Register (63 FR 25828) the preliminary results
of review of the antidumping duty order on industrial nitrocellulose
(INC) from France. The period of review (the POR) is August 1, 1996,
through July 31, 1997. We invited parties to comment on our preliminary
results of review. On June 10, 1998, and June 15, 1998, we received
case and rebuttal briefs from the respondent, Bergerac, N.C.
(Bergerac), and the petitioner, Hercules Incorporated (Hercules). A
public hearing was held on June 18, 1998. Subsequently, we requested
that Bergerac revise its case brief which contained new and untimely
information. We also requested that Bergerac provide additional
information. Bergerac filed responses to our requests on July 13, 1998,
and July 20, 1998, respectively. The Department has conducted this
administrative review in accordance with Section 751 of the Tariff Act.
Scope of Review
The product covered by this review is INC containing between 10.8
and 12.2 percent nitrogen. INC is a dry, white, amorphous synthetic
chemical produced by the action of nitric acid on cellulose. The
product comes in several viscosities and is used to form films in
lacquers, coatings, furniture finishes and printing inks. Imports of
this product are classified under the HTS subheadings 3912.20.00 and
3912.90.00. The HTS item numbers are provided for convenience and
customs purposes. The written descriptions of the scope of this
proceeding remain dispositive.
Analysis of Comments Received
Comment 1: Bergerac argues that, in applying the ``special rule''
for merchandise with value added after importation under Section 772(e)
of the Tariff Act, the Department should use as a proxy for these sales
the margin calculated for sales to an unaffiliated customer which
purchased identical merchandise, rather than the margin the Department
calculated on all sales of subject merchandise. To support its
argument, Bergerac cites Section 772(e) of the Tariff Act which
provides that, for further-manufactured merchandise in which the value
added in the United States is likely to exceed substantially the value
of the subject merchandise, the Department shall use either the price
of identical merchandise sold to an unaffiliated person or the price of
other subject merchandise sold to an unaffiliated person to determine
constructed export price (CEP). While recognizing that the statute does
not express a clear preference for either of these options, Bergerac
notes that, in the preamble to the new regulations, the Department has
stated ``whether merchandise is identical may be a factor to consider
in selecting the sales to be substituted for the value added sales,''
citing Antidumping Duties; Countervailing Duties; Final Rule, 62 FR
27296, 27296 (May 19, 1997) (Final Rule). Bergerac also cites to 19 CFR
351.402 which states that, for the purposes of determining dumping
margins under the special rule above, ``the Secretary may use the
weighted-average dumping margins calculated on sales of identical or
other subject merchandise sold to unaffiliated persons.''
Furthermore, Bergerac insists, the use of the term ``unaffiliated
person'' in the statute requires the use of a margin calculated on
sales to the first purchaser of subject merchandise in the United
States. However, Bergerac contends, by including the margin calculated
for its sales through SNPE N.A., an affiliated company, in its
calculation of the proxy margin, the Department is using a margin
calculated on resales by an affiliated distributor. To interpret
``unaffiliated person'' to mean unaffiliated customers of SNPE,
Bergerac continues, would render the term ``unaffiliated person''
superfluous in the statute since all margins are based on sales to
unaffiliated persons.
Hercules responds that, in the preamble to the Department's new
regulations to which Bergerac refers, the Department merely restates
the content of Section 772(e) of the Tariff Act, citing Final Rule at
27353. Hercules notes that, in this same discussion, the Department
stated that it had little experience with this new statutory provision
and, therefore, was not in a position to provide a great deal of
guidance at that time. Nevertheless, Hercules notes that the Department
subsequently enunciated a preference for using both identical and other
merchandise in Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or
Less in Outside Diameter, and Components Thereof, From Japan,
Preliminary Results of Antidumping Duty Administrative Reviews, 62 FR
47452 (September 9, 1997).
Moreover, Hercules argues that, had the Department looked only to
sales to one unaffiliated customer, as suggested by Bergerac, the
Department would have
[[Page 49086]]
taken into account only a small fraction of respondent's U.S. sales and
ignored the majority of Bergerac's U.S. sales. Therefore, Hercules
concludes that the Department's use of the weighted-average margin for
all other U.S. sales as a proxy margin for sales of merchandise with
value added was reasonable and proper under the statute and
regulations.
Department's Position: The purpose of the special rule is to reduce
the Department's administrative burden. See the Statement of
Administrative Action accompanying the Uruguay Round Agreements Act,
H.R. Doc. 316, Vol. 1, 103d Congress (1994) (SAA) at 826. Moreover, the
statute does not specify a hierarchy between the alternative methods of
using identical or other subject merchandise to establish export price
(EP). Id. Therefore, it is within the Department's discretion to select
an appropriate method to determine the assessment rate for merchandise
the Department has not examined under the special rule.
After reviewing Bergerac's submitted data, we have determined that
the use of both identical and other subject merchandise is an
appropriate basis for determining the dumping margins for Bergerac's
sales subject to the special rule. If we were to use only the margin we
calculated on sales to one unaffiliated customer of merchandise
identical to the value-added merchandise, as suggested by Bergerac, we
would ignore the majority of U.S. sales and the pricing practices that
these sales entail. This is consistent with the statutory language and
legislative history which explicitly permit the Department to reject a
particular alternative when there is not a sufficient quantity of sales
to provide a reasonable basis for comparison. See Section 772(e) of the
Tariff Act and the SAA at 826.
We also disagree with Bergerac's argument that we should not use
sales in the United States made by its U.S. affiliate. In accordance
with Section 772(b) of the Act, such sales are used as the basis for
establishing U.S. price. Therefore, it is appropriate to include such
sales in the alternative methodology. See also 19 CFR 351.402(c).
Comment 2: Bergerac argues that the Department should include the
sales value of the imported subject merchandise which was further-
manufactured and the estimated duties on those entries in the weighted-
average margin calculations. As support for its argument, Bergerac
points to the Department's analysis memorandum dated April 17, 1998,
which states that the Department calculated the weighted-average margin
based on the total value of sales in the United States and their total
antidumping duties; however, Bergerac argues that, contrary to the
statement in the April 17, 1998, memorandum, the calculations do not
include the value of sales of imported merchandise with value added or
the estimated duties attributed to these sales. Bergerac requests that
the Department revise its weighted-average margin to include such sales
value and duties.
Hercules asserts that the Department was correct in not including
the sales value of imported merchandise with value added or the amount
of the antidumping duty margin attributed to the sales of these
products in the weighted-average margin calculations. In this case,
Hercules contends, the sales of merchandise with value added are, by
definition, calculated on a surrogate basis under the ``special rule''
provisions of Section 772(e) in order to save the Department the
administrative burden of factoring out an exact margin on INC subject
to the special rule.
Department's Position: We disagree with Bergerac that we should
change our methodology for calculating its weighted-average margin.
Based on our methodology, adding surrogate numbers to the numerator and
denominator in our margin calculations would not change the results. As
explained in our response to Comment 1, we are using the margin
calculated on all of Bergerac's other sales as the surrogate for
Bergerac's further-manufactured sales subject to the special rule.
Consequently, any figures added to both the numerator and denominator
of the margin calculation would only ensure the same result. Also, we
disagree with Bergerac's comment that our analysis memorandum
misleadingly refers to the use of total value of U.S. sales and their
total duties. We stated clearly in a footnote on page 1 of that
memorandum that ``the total dumping margin and U.S. value are based
solely on products sold as entered into the United States.'' It is
clear that this statement excludes further-manufactured merchandise
since such merchandise was not ``sold as entered.''
Comment 3: Bergerac argues that the Department should use sales to
distributors in France, who in turn sold the foreign like product to
third countries, to calculate a level-of-trade adjustment instead of
making a CEP-offset adjustment to normal value. Bergerac claims that
the Department should not reject such sales on the grounds that
Bergerac had knowledge of the ultimate destination. Bergerac notes that
one of the statutory requirements for making a CEP-offset adjustment,
instead of a level-of-trade adjustment, is that the data available do
not provide an appropriate basis to determine whether the difference in
levels of trade affects price comparability, citing 19 CFR 351.412(d).
Bergerac argues that, since information is available, the application
of a CEP offset is inappropriate and that a level-of-trade adjustment
is required.
Bergerac argues that, unless it can be proven that there is a
reason to believe that sales to distributors in France are not
representative, such sales should be used for the purpose of
determining a level-of-trade adjustment. Bergerac insists that the use
of the term ``sold for consumption'' in the definition of normal value
should not lead to the conclusion that such sales cannot be used for
quantifying a level-of-trade adjustment. Bergerac also argues that, in
a future administrative review, the ultimate destination of these sales
may be unknown since there is no restriction on distributors to prevent
them from selling the merchandise in France.
Bergerac points out that the SAA (at 830) gives the Department
considerable discretion in determining levels of trade. Similarly,
Bergerac notes that, in situations in which there may be no usable
sales of the foreign like product at a level of trade comparable to the
EP or CEP level of trade, the preamble to the new regulations states:
``...the Department will examine price differences in the home market
either for sales of broader or different product lines or for sales
made by other companies'' (Final Rule at 27372). Bergerac argues that,
if the Department may use sales of other producers, or other products
in different time periods, then the Department should be able to use
sales of the same product by the same producer, despite the fact that
sales in the home market are later sold for export. Bergerac concludes
by urging the Department to exercise its considerable discretion in
this new area of the law so that a fair comparison can be achieved for
Bergerac's U.S. distributor sales.
Hercules responds that the Department denied a level-of-trade
adjustment to Bergerac properly. Citing Section 773(a)(7)(A) of the
Tariff Act, Hercules argues that the amount of a level-of-trade
adjustment should be based on the price difference ``between the two
levels of trade in the country in which normal value is determined.''
Hercules points out that the additional distributor sales that Bergerac
reported belatedly in a supplemental response do not constitute a
second level of trade. These sales, Hercules contends, are clearly
export sales and Hercules points
[[Page 49087]]
out that Bergerac acknowledged this fact in statements throughout its
original questionnaire.
Department's Position: We agree with Hercules that Bergerac's sales
to distributors in France for export should not be used as a basis for
determining a level-of-trade adjustment. As we noted on page 3 of our
analysis memorandum dated April 17, 1998, Section 773(a)(7)(A)(ii) of
the Tariff Act requires us to evaluate the basis for a level-of-trade
adjustment based on sales at different levels of trade in the country
in which normal value is determined. According to Section
773(a)(1)(B)(i), the sales at issue could not be used to calculate
normal value since Bergerac knew that the products were sold for
export; i.e., they were not sold for consumption in the exporting
country. Moreover, it would be inappropriate to compare prices to two
or more different markets (Bergerac's home-market sales with its export
sales) to calculate a level-of-trade adjustment since it would not be
possible to distinguish the price differences due to the different
markets from the price differences due to any level-of-trade
differences. For these reasons, we have not made any changes to our
level-of-trade determination for these final results of review.
Comment 4: Bergerac contends that the Department included certain
sample and trial sales in its home-market database improperly. The
Department should exclude these sample and trial sales from its
calculation of normal value, Bergerac argues, because respondent has
provided sufficient evidence that such sales are outside the ordinary
course of trade. Regarding sample transactions, Bergerac asserts that,
while the Department excluded free samples from its calculations
properly, it should also have eliminated samples which were sold for
monetary consideration (priced samples). As evidence to support its
argument, Bergerac points out that the product code included on the
invoices for these sales contains a suffix which demonstrates that they
are samples. Furthermore, Bergerac states the price for these samples
was high to cover the relatively high cost of shipping and packaging
small quantities.
In addition, Bergerac asserts that its trial sales were outside the
ordinary course of trade. Bergerac argues that, in a supplemental
response, it submitted letters from the customers which demonstrate
that each transaction was for testing purposes only. Bergerac also
contends that the grade of nitrocellulose sold in these cases is a
grade that normally is not sold in France.
While recognizing that the Department determined properly that its
priced samples and trial sales were ``sales'' because they did not lack
consideration in accordance with NSK Ltd. v. United States, 115 F. 3d
965, 975 (CAFC 1997) (NSK), Bergerac contends that, in its
determination to retain these transactions, the Department relied
improperly on this qualification alone and did not determine whether
the sales were outside the ordinary course of trade. Bergerac asserts
that NSK is inapplicable to this situation because it dealt with
certain transactions which were not sales and did not address whether
certain sales were outside the ordinary course of trade.
Bergerac asserts that, in determining whether these sales are
outside the ordinary course of trade, the Department must consider all
of the circumstances surrounding the sales in question, citing 19
C.F.R. 351.102(b), Murata Mfg. Co. v. United States, 820 F. Supp. 603,
606-7 (Court of International Trade (C.I.T.) 1993) (Murata), and
Laclede Steel Co. v. United States, 18 C.I.T. 965, 1994 WL 591949
(C.I.T. 1994). Bergerac explains that ``the purpose of the ordinary
course of trade provision is to prevent dumping margins from being
based on sales which are not representative,'' citing Monsanto Co. v.
United States, 698 F. Supp. 275, 278 (C.I.T. 1988). Furthermore,
Bergerac argues that the Department has recognized that trial and
sample sales must be excluded from normal value, citing Final
Determination of Sales at Less Than Fair Value: Antifriction Bearings
(Other Than Tapered Roller Bearings) from the Federal Republic of
Germany, 54 FR 18992, 19087 (May 3, 1989), and Antidumping Manual,
Import Administration, revised February 10, 1998, Chapter 8, pages 9-
10.
Hercules disagrees with Bergerac, arguing that the Department
included priced samples and trial sales in its analysis properly.
Hercules contends that the burden of proof to demonstrate that these
sales are outside the ordinary course of trade rests clearly on
Bergerac, citing Tapered Roller Bearings and Parts Thereof, Finished
and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or
Less In Outside Diameter, and Components thereof, From Japan, Final
Results of Antidumping Duty Administrative Reviews, 63 FR 2558 (January
15, 1998) (Tapered Roller Bearings).
Citing Murata, Hercules contends that the C.I.T. has found that a
respondent did not meet its burden of proof merely by claiming that the
relevant sales were in smaller quantities and at higher prices than
sales of a different model. Hercules argues that Bergerac did not
provide certain information regarding these sample and trial
transactions which the Department requested in a supplemental
questionnaire. Finally, citing Tapered Roller Bearings, Hercules argues
that the Department has previously disallowed the requested exclusion
of sample sales where the respondent has merely stated that the product
is coded as a sample and that the sample prices are generally higher
than for larger-volume shipments. Hercules asserts that this is a
similar situation and that Bergerac has also failed to meet its burden
of proof in this regard.
Department's Position: We disagree with Bergerac that we should
exclude certain home-market sales because they are outside the ordinary
course of trade. Regarding priced samples, while it is clear that the
invoices for these sales indicated that they were sample sales, such
indication is not sufficient to demonstrate that the sale is unique or
unusual or otherwise outside the ordinary course of trade. See
Antifriction Bearings (Other Than Tapered Roller Bearings and Parts
Thereof from France, Germany, Italy, Japan, Singapore, and the United
Kingdom, Final Results of Antidumping Duty Administrative Reviews, 62
FR 2081 (January 15, 1997) (where, although we verified that certain
sales were designated as samples in a respondent's records, we
determined this was insufficient to find them outside the ordinary
course of trade since such evidence ``merely proves that respondent
identified sales recorded as samples in its own records''). Such
evidence does not indicate that the sales were made outside the
ordinary course of trade for purposes of calculating normal value in
this review. Bergerac's argument that these sales were at a high price
to cover the high cost of shipping small packages does not address the
Department's ``unique or unusual'' standard concerning ordinary course
of trade. See Large Newspaper Printing Presses and Components Thereof,
Whether Assembled or Unassembled, From Germany (61 FR 38166, July 23,
1996) as discussed in Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof from France, et. al.; Final Results of
Antidumping Duty Administrative Reviews (62 FR 54043, at 54065-54066,
October 17, 1997).
Regarding trial sales which Bergerac claims are outside the
ordinary course of trade, the respondent has not met its burden to
demonstrate that these sales are unique or unusual or otherwise outside
the ordinary course of trade.
[[Page 49088]]
First, while Bergerac claims that it does not usually sell this grade
of INC in France, it sells this product to the U.S. market frequently
as indicated by its sales database. Furthermore, although Bergerac
argues that it submitted letters from each of the trial-sale customers
demonstrating that, in each case, the product was used for testing
purposes only, the letters it provided are not convincing. One of the
letters appears to be from Bergerac to the customer, rather than from
the customer to Bergerac (as the respondent claims), and does not
indicate that any testing was conducted (or was to be conducted) by the
customer. Also, while Bergerac claimed in its January 20, 1998,
supplemental response that this trial was unsuccessful, it did not
submit any evidence to establish this fact. Regarding other trial
sales, another letter from the customer to Bergerac does discuss
testing, but this letter is dated after our request for documentation
of the trial sales and not at the time of the sales. (Because of the
proprietary nature of the contents of these letters, please see the
August 31, 1998, analysis memorandum for a more detailed discussion of
this matter.) Finally, we found that these trial sales were made in
quantities similar to other sales, supporting the possibility that the
product was used for production purposes.
Regarding both priced samples and trial transactions, Bergerac
failed to provide certain information which we requested in a
supplemental questionnaire specifically in order to determine whether
these transactions were outside the ordinary course of trade. For
example, regarding both types of sales at issue, Bergerac did not
respond as to whether the customer had purchased these particular items
previously. For these reasons, the record is incomplete as to whether
sales of these products were made to these customers prior to the dates
of the claimed sample and trial transactions and we have retained them
for use in our calculation of normal value.
We also disagree with Bergerac's assertion that we relied on an
incorrect standard for determining whether to include claimed sample
and trial sales in our calculation of normal value. We first evaluated,
under the NSK standard, whether these transactions were in fact
``sales'' involving monetary consideration. Where we determined that
the transactions involved monetary consideration, we then examined,
based upon information in Bergerac's response, whether these sales were
within the ordinary course of trade according to Section 771(a)(1)(B)
of the Tariff Act. (See page 5 of April 17, 1998, Analysis Memo.)
According to this standard and for reasons discussed above, we find
that Bergerac has not met its burden of proof in demonstrating that the
sales in question are outside the ordinary course of trade.
Comment 5: Hercules argues that, although Bergerac denied that it
sold any subject merchandise which was below specification, its
responses demonstrate that Bergerac did not account properly for the
production of below-specification INC in its sales databases. Hercules
contends that the Department should instruct Bergerac to submit
supportive data regarding the production and sale of ``off-spec''
merchandise in order to determine whether there were any sales of such
merchandise in the home market. This additional request for information
after the preliminary results is necessary, Hercules asserts, because
the Department must not compare sales of off-spec or less-than-prime
merchandise to U.S. sales of prime merchandise.
Bergerac rebuts Hercules' comment by denying that a request for
supplemental information is necessary, stating that it reexamined its
quality-control records in response to Hercules' comment. As a result
of this search, Bergerac identified in its rebuttal brief where it had
sold off-spec merchandise in the home market. In addition, Bergerac
contends that it submitted information regarding the production and
sale of off-spec merchandise, including the proportion of off-spec
merchandise which it produced and, of that amount, what proportion was
sold at reduced prices and what proportion was recycled into the
manufacturing process.
Department's Position: We agree with Hercules and have obtained
additional information regarding Bergerac's production and sale of off-
spec merchandise. Based on this information and because there were no
sales of off-spec merchandise in the United States, we eliminated such
sales from the calculation of normal value. Consistent with our
practice, we have changed our methodology to ensure that we did not
compare home-market sales of off-spec merchandise to U.S. sales of
prime merchandise. See Steel Wire Rod From Canada; Final Determination
of Sales at Less Than Fair Value, 63 FR 9182, 9183 (February 24, 1998);
see also Certain Cold-Rolled Carbon Steel Flat Products from the
Netherlands; Final Results of Antidumping Duty Administrative Review,
61 FR 48465, 48466 (September 13, 1996).
Comment 6: Bergerac argues that the Department should not have
considered a certain home-market customer to be an affiliated party for
purposes of its analysis and, therefore, should not have included its
sales to this customer in its arm's-length test. Bergerac contends
that, although technically affiliated to Bergerac under Section 771(33)
of the Tariff Act through a common board member, this company cannot
influence the prices it pays because there is no link between the board
member's membership on Bergerac's board and his membership on the
customer's board. Therefore, Bergerac asserts, the prices paid were at
arm's length and were not affected by the existence of a common board
member.
Hercules argues that the Department was correct in performing the
arm's-length test on Bergerac's sales to the home-market customer in
question and that, under section 771(33) of the Tariff Act, a common
officer or director is sufficient to consider two firms to be
affiliated. Hercules argues further that, given that the sales failed
the arm's-length test, the Department excluded them from the
calculation of normal value properly.
Department's Position: We disagree with Bergerac that it was
inappropriate to treat one of its home-market customers as affiliated
and, therefore, include all sales to that customer in our arm's-length
test. In its January 20, 1998, supplemental questionnaire response,
Bergerac reported that, because the chairman of its board of directors
is also a member of the board of directors of the customer in question,
the respondent is ``affiliated'' to the customer in question as the
term is used by the Department. Although it stated that it does not
consider the customer to be affiliated because the relationship is
maintained on an arm's-length basis, Bergerac did not raise this issue
until late in the proceeding and did not provide sufficient information
to allow the Department to analyze the affiliation issue. Thus, as
facts available, we are relying on the respondents' statement that the
customer is affiliated under our standards. Because the customer is
being treated as affiliated, it was appropriate to include all sales to
the customer in question in our arm's-length test.
After conducting the arm's-length test, which is how we determine
whether an affiliation affects prices in such a way that they should be
excluded from the calculation of normal values, we found that
Bergerac's transactions with the customer in question failed the test
and, thus, it was appropriate to exclude these transactions from our
calculations.
[[Page 49089]]
Final Results of Review
As a result of our review, we determine the final weighted-average
dumping margin for the period August 1, 1996, through July 31, 1997 to
be as follows:
------------------------------------------------------------------------
Margin
Company (percent)
------------------------------------------------------------------------
Bergerac................................................... 13.35
------------------------------------------------------------------------
The Department shall determine, and the U.S. Customs Service shall
assess, antidumping duties on all appropriate entries. Because the
inability to link sales with specific entries prevents calculation of
duties on an entry-by-entry basis, for CEP sales we have calculated an
ad valorem duty-assessment rate based on the ratio of the total amount
of antidumping duties calculated for the examined sales made during the
POR to the total customs value of the sales used to calculate those
duties. This rate will be assessed uniformly on all entries of that
particular importer made during the POR. (This is equivalent to
dividing the total amount of antidumping duties, which are calculated
by taking the difference between statutory NV and statutory EP or CEP,
by the total statutory EP or CEP value of the sales compared and
adjusting the result by the average difference between EP or CEP and
customs value for all merchandise examined during the POR.) For EP
sales, Bergerac could not identify the importer(s) of record for sales
to unaffiliated customers. Therefore, we have calculated a single, per-
unit duty assessment rate by dividing the total dumping margins by the
total quantity sold to these customers.
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)(1) of the Tariff Act: (1) the cash-deposit rate for Bergerac
will be 13.35 percent; (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 review, a prior review, or
the original less-than-fair-value investigation (LTFV), 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)
the cash-deposit rate for all other manufacturers or exporters will be
1.38 percent. This is the ``all others'' rate from the LTFV
investigation which we are reinstating in accordance with the decisions
of the Court of International Trade in Floral Trade Council v. United
States, Slip Op. 93-79 (May 25, 1993), and Federal-Mogul Corporation
and The Torrington Company v. United States, Slip Op. 93-83 (May 25,
1993).
This notice serves as a final reminder to importers of their
responsibility under 19 C.F.R. 351.402(f) of the Final Rule 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 Department's
presumption that reimbursement of antidumping duties occurred and the
subsequent assessment of doubled antidumping duties.
This notice also serves as the only reminder to parties subject to
administrative protective orders (APO) of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with 19 C.F.R. 353.34(d) or
conversion to judicial protective order is hereby requested. Failure to
comply with the regulations and terms of an APO is a violation which is
subject to sanction.
We are issuing and publishing this determination and notice in
accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.
Dated: September 4, 1998.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 98-24598 Filed 9-11-98; 8:45 am]
BILLING CODE 3510-DS-P
