[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