[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
------------------------------------------------------------------------

    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