[Federal Register Volume 60, Number 131 (Monday, July 10, 1995)]
[Notices]
[Pages 35551-35552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16837]
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DEPARTMENT OF COMMERCE
[A-357-804]
Notice of Amendment to Final Determination and Antidumping Duty
Order: Silicon Metal From Argentina
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: July 10, 1995.
FOR FURTHER INFORMATION CONTACT:
Kristin Heim or Elizabeth Graham, Office of Countervailing
Investigations, U.S. Department of Commerce, Room B099, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
3798 and 482-4105, respectively.
Summary
On May 30, 1995, the United States Court of International Trade
(CIT) affirmed the Department of Commerce's (the Department) April 7,
1995, remand determination and entered Final Judgment. See American
Alloys, Inc. et al. v. United States of America, Slip-Op 95-98, Court
No. 91-10-00782 (CIT May 30, 1995).
On September 26, 1991, the Department published the Antidumping
Duty Order of Silicon Metal from Argentina (56 FR 48779, September 26,
1991). The weight-averaged margin was determined to be 8.65 percent.
The Department prepared the final results of redetermination
pursuant to a remand order dated December 9, 1994, from the Court of
International Trade, which was based upon the U.S. Court of Appeals for
the Federal Circuit's opinion in American Alloys, Inc. et al. v. United
States, 30 F.3d 1469 (Fed.Cir. 1994). In accordance with the Federal
Circuit's order, the Department attempted to analyze whether indirect
taxes rebated under Argentina's Reembolso program should be accounted
for in the calculation of U.S. price (USP), pursuant to 19 U.S.C.
1677a(d)(1)(C), when determining the dumping margin. Because the
respondent refused to allow verification, the Department made its
remand determination on the basis of best information available (BIA)
which resulted in a dumping margin of 17.87 percent.
Background
The Reembolso is a program through which the Government of
Argentina provided tax and duty rebates to silicon metal exporters that
purchased domestically produced and imported inputs. In the antidumping
investigation, the Department determined that the USP should be
adjusted upward by the amount of the rebated taxes which the
respondent, Electrometalurgica Andina S.A.I.C. (Andina), received upon
export of the subject merchandise to the United States. Petitioners
challenged the methodology the Department used to make this
determination, arguing that the Department had failed to investigate
whether the taxes rebated under Reembolso were imposed directly upon
silicon metal or inputs physically incorporated into silicon metal. In
petitioners' view, this inquiry was necessary to determine which of the
taxes rebated under the Reembolso program were directly related to the
exported merchandise or components physically incorporated therein.
The CIT affirmed the Department's determination that this type of
inquiry was relevant to a countervailing investigation, but not an
antidumping investigation. The CIT also instructed the Department to
examine more closely the tax pass-through issue. American Alloys, Inc.
v. United States, 810 F. Supp. 1294, 1296 (CIT 1993). Petitioners
subsequently appealed and the U.S. Court of Appeals for the Federal
Circuit reversed and remanded the lower court's decision, holding that
the Department must undertake a directly-related inquiry in the
antidumping investigation of silicon metal from Argentina. American
Alloys, Inc. v. United States, 30 F.3d 1469 (Fed.Cir. 1994). In
addition, the Federal Circuit reversed the Court of International
[[Page 35552]]
Trade's ruling that the Department had to conduct a tax pass-through
analysis in the home market. In so doing, the Federal Circuit found
that the Department's verification in the investigation that taxes were
included in the home market price was based on sufficient record
evidence.
ITA Remand Results
The Department attempted to follow the Court's remand instructions
to examine whether each tax was directly related to the merchandise in
question and its physically incorporated components. In so doing, the
Department requested the respondent, Andina, to identify which
components used in the production of silicon metal were physically
incorporated into silicon metal, and which of the taxes rebated under
the Reembolso program were directly related to the silicon metal or the
components physically incorporated therein. Andina filed its response
and petitioners subsequently commented. The Department then issued a
deficiency questionnaire requesting additional information which the
Department concluded was necessary to complete a physical incorporation
analysis and the directly related test. Andina responded and
petitioners subsequently submitted comments on this response.
Due to the substantial amount of new information submitted by
Andina, a verification was deemed necessary. Andina initially indicated
its willingness to participate in a verification. However, Andina
subsequently informed the Department that it would not allow a
verification of the responses. Andina cited cost reductions, reduced
personnel, preparation of annual financial statements and difficulty in
locating documentation from the period of investigation (March 1
through August 31, 1990) as reasons for its decision not to participate
in the verification.
Because the respondent refused to allow verification of its
responses, the Department was forced to make its remand determination
on the basis of BIA pursuant to section 776(c) of the Tariff Act of
1930, as amended, 19 U.S.C. 1677e(c). Accordingly, as BIA, the
Department did not allow an adjustment to USP for the rebated taxes
received under the Reembolso program. Therefore, we have calculated the
dumping rates for Andina without making an upward adjustment to USP for
the amount of the Reembolso tax rebated received. In addition, the
adjustment to USP of the value-added tax (VAT) that was disallowed in
the first remand can now be reinstated. In adjusting USP for the VAT,
we employed the methodology developed as a result of the Court's
decision in Federal-Mogul, et al. v. United States, 834 F. Supp 1391
(CIT 1993). See Final Determination of Sales at Less Than Fair Value:
Calcium Aluminate Cement, Cement Clinker and Flux from France, 59 FR
14136, March 25, 1994.
Based on our examination of the record, we determine the LTFV
margin to be:
------------------------------------------------------------------------
Margin
Producer/ManufacturerExporter (percentage)
------------------------------------------------------------------------
Andina.................................................. 17.87
All others.............................................. 17.87
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Dated: June 30, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-16837 Filed 7-7-95; 8:45 am]
BILLING CODE 3510-DS-M