[Federal Register Volume 61, Number 25 (Tuesday, February 6, 1996)]
[Notices]
[Pages 4415-4418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2368]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
[A-570-840]
Notice of Amended Final Determination and Antidumping Duty Order:
Manganese Metal From the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: February 6, 1996.
FOR FURTHER INFORMATION CONTACT: David Boyland or Daniel Lessard,
Office of Countervailing Duty Investigations, Import Administration,
International Trade Administration, U.S. Department of Commerce, at
(202) 482-4198 or (202) 482-1778, respectively.
Amendment to the Final Determination
We are amending the final determination of sales at less than fair
value of manganese metal from the People's Republic of China (the PRC)
to reflect the correction of ministerial errors made in the margin
calculations in that determination. We are publishing this amendment to
the final determination in accordance with 19 CFR 353.28(c).
Case History and Amendment of the Final Determination
In accordance with section 735(d) of the Tariff Act of 1930, as
amended (the Act), on November 6, 1995, the Department of Commerce (the
Department) published its final determination that manganese metal from
the PRC was being sold at less than fair value (see 60 FR 56045
(November 6, 1995)).
On November 20, 1995, petitioners, Kerr McGee and Elkem Metals
Company, and respondents, China National Electronics Import & Export
Hunan Company (CEIEC), China Hunan International Economic Development
Corporation (HIED), China Metallurgical Import & Export Hunan Corp. and
Hunan Nonferrous Metals Import & Export Associated Co. (CMIECHN/
CNIECHN), and Minmetals Precious & Rare Minerals Import & Export Co.
(Minmetals) made allegations that the Department made ministerial
errors in its final determination. On November 22, 1995 and November
28, 1995, rebuttal comments were submitted by petitioners and
respondents, respectively.
Because the choice and application of a specific surrogate
manganese ore value is not a clerical error pursuant to 19 CFR
353.28(d), as petitioners acknowledged in their submission, the
Department has not considered the arguments raised by petitioners or
respondents with regard to this issue.
As listed below, Allegations 1 through 5 were made by petitioners
and Allegations 6 through 10 were made by respondents. Each summarized
allegation, including any comment submitted by petitioners or
respondents in response to the allegation, is followed by the
Department's response (see also November 30, 1995 memorandum to Barbara
Stafford, Deputy Assistant Secretary for Investigations).
[[Page 4416]]
Allegation 1
According to petitioners, the surrogate ore value used at the final
determination requires that the Department adjust the usage levels of
direct process chemicals used in the production of subject merchandise.
Respondents argue that petitioners' allegation is not a clerical
error, but rather an argument for a methodological change. Respondents
also argue that considering this new methodological argument reopens
the record and violates respondents' due process rights.
DOC Position
We agree with respondents that petitioners' claim is not a clerical
error pursuant to 19 CFR 353.28(d). Furthermore, the information
supporting petitioners' clerical error allegation represents untimely-
filed new information. Accordingly, the Department has not considered
this issue and has removed the information submitted by petitioners in
support of this argument, as well as respondents' rebuttal to this
information, from the record (see 19 CFR 353.31(a)(3)).
Allegation 2
Petitioners allege the following: 1) the calculations of skilled
and unskilled labor hours for Producer A were not provided in existing
documentation, 2) the allocation of Processor B's skilled versus
unskilled labor and direct versus indirect labor was not provided in
existing documentation, 3) the verification report for Processor C
refers to a July 11, 1995 document regarding labor which is not on the
record, and 4) the calculations for Producer D's unskilled labor do not
match the documentation provided.
With respect to the above allegation, respondents argue in general
that the Department's labor calculations are based on verified
information, as stated in the verification reports.
DOC Position
While the calculation of Producer A's skilled and unskilled labor
could have been outlined more clearly, the Department does not consider
the absence of a full explanation of this producer's labor calculations
to be a clerical error.
The verification report of Processor B explains that both the
skilled and unskilled labor values were verified from production
records which were not taken as verification exhibits. As noted above,
the absence of a detailed description of Processor B's labor
calculations does not constitute a clerical error.
With respect to Processor C, the verification report was referring
to the July 17, 1995 submission by respondents, not to a July 11, 1995
report. This error, in the narrative of the verification report, had no
impact on the calculation of labor. When reexamining Processor C's cost
of manufacture (COM), however, it was found that estimated indirect
labor was omitted. (Note: the final determination stated that indirect
labor would be added to the extent that indirect labor could be
quantified (see 60 FR 56050 (November 6, 1995)). Because the
calculation for Processor C's estimated indirect labor yields a
positive number, unlike Processor B above, estimated indirect labor has
been added to Processor C's COM for the amended final determination.
Finally, although the Department did not outline its calculation of
Producer D's unskilled labor, the information necessary to derive this
value is contained in the narrative of the verification report and in
the referenced exhibit. As indicated above, the Department does not
consider the absence of a detailed explanation of Producer D's labor
calculations to be a clerical error. The subsequent reexamination of
Producer D's labor values, however, has led the Department to revise
the original unskilled labor value to include indirect labor
inadvertently excluded from the unskilled labor calculation. For the
amended final determination, the Department has used a labor value
which reflects direct and indirect labor.
Allegation 3
Petitioners allege that, for all respondents, the calculated
freight cost is inconsistent with the methodology described in the
calculation memorandum. Specifically, the calculated truck rates are
lower than the methodology and data would indicate. According to
petitioners, the discrepancies do not appear to be explained by
rounding errors.
DOC Position
The calculation memorandum inadvertently excluded one element from
the explanation of the methodology employed. The calculation memorandum
should have stated that, in addition to the distance and transportation
rate, the factor usage of each input is multiplied by the relative
weight. The calculations for freight costs in the margin calculations
were reexamined and determined to be correct.
Allegation 4
Petitioners allege that HIED's margin, as shown on the Department's
calculation spreadsheet, does not match the HIED margin published in
the Federal Register notice for the final determination. Petitioners
also argue that, based on the underlying values in HIED's spreadsheet
calculations and supporting data, HIED's margin should be 4.47 percent.
DOC Position
Petitioners are correct. The final margin listed in the final
determination notice was incorrect. Additionally, the total value
column (TOTVAL) is HIED's margin calculation was incorrectly calculated
as gross U.S. price (USP) times quantity. TOTVAL should have been net
USP times total quantity. Since this is a clerical error, HIED's TOTVAL
has been recalculated using net USP for the amended final
determination.
Allegation 5
Petitioners argue that the September 19, 1995 verification report
for Producer E indicates that electricity consumption for July 1995 was
an amount different than that shown in verification exhibits.
Respondents do not dispute that the Department transposed the July
electricity consumption figure. However, they assert that the
Department's methodology for deriving Producer E's electricity cost is
incorrect and should be corrected using respondents' suggested
methodology.
DOC Position
Petitioners are correct. The verification report inadvertently
transposed Producer E's electricity usage for July. Since this is a
clerical error, the correct number has been used to recalculate
Producer E's COM. Because respondents' allegation is based on changing
the method by which Producer E's electricity consumption is calculated,
the Department considers this to be a methodological argument, as
opposed to a clerical error, and has not made the change recommended by
respondents.
Allegation 6
Respondents allege that there are a number of mathematical errors
in the Department's foreign market value (FMV) calculations.
Petitioners' rebuttal does not substantially deviate from the
Department's finding below.
DOC Position
The Department's FMV calculations have been reexamined and compared
to the FMV calculation submitted by
[[Page 4417]]
respondents. The Department has concluded that the mathematical errors
cited by respondents are not errors but are due solely to rounding.
Allegation 7
Respondents allege that the Department incorrectly adjusted the
content level of a particular input for Producers E and F.
With the exception of indicating that the difference between the
input usages for Producer F, as calculated by respondents and the
Department, was likely due to a rounding error, petitioners' rebuttal
does not deviate substantially from the Department's finding below.
DOC Position
The calculation values provided by respondents for the input
adjustment are not correct. Because the Department's adjustment, as
outlined in its calculation memorandum, is reflected correctly in the
FMV calculation of Producers E and F, no change has been made pursuant
to respondents' allegation.
Allegation 8
Respondents allege that a value for ``rates and taxes'' was
incorrectly included in SG&A because, according to the Department's
final determination, the FMV was to be ``net for all taxes.''
Additionally, citing the December 19, 1994 calculation memorandum for
the final determination of Coumarin from the People's Republic of China
(Coumarin), respondents argue that it has been the Department's past
practice not to include ``rates and taxe'' from the Reserve Bank of
India Bulletin (RBI) in SG&A.
Citing to Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof From France, et al., 60 FR 10900 (February
28, 1995), petitioners assert that respondents' argument that ``rates
and taxes'' should not be included in the FMV is unsupported by
precedent. According to petitioners, respondents are incorrect in
relying on Coumarin because in that case the question of whether to
include or exclude ``rates and taxes'' from SG&A was not raised.
DOC Position
In determining FMV, the Department intended to follow its standard
practice, which is to employ tax-exclusive factors of production values
and to include a value for ``rates and taxes'' in the calculation of
SG&A. The Department assumes that ``rates and taxes'' refer to utility
costs, such as sewer rates, and property taxes. Such expenses are
properly included within the Department's calculation of the FMV
because they reflect required expenses incurred in producing the
subject merchandise that were not rebated upon export.
Furthermore, whether ``rates and taxes'' should be included in SG&A
was not an issue in Coumarin. Therefore, the case provides no guidance
or precedent here.
Moreover, while respondents quote the Department as saying in the
final determination of this case that the FMV was to be ``net of all
taxes,'' the statement was actually ``net of taxes'' and was referring
to the sentence before which specifically addressed the Indian
surrogate values used in calculating the factors of production.
Finally, we note that the issue of whether ``rates and taxes''
should be included within SG&A is substantive, not clerical.
Allegation 9
Respondents allege that in determining SG&A the Department
incorrectly used 296 instead of 204 when valuing ``rates and taxes''
from the RBI. In response, petitioners note that the Department
incorrectly calculated SG&A when it used 188 instead of 296 for the
``advertisement'' expense as listed in the RBI.
DOC Position
Respondents, as well as petitioners, are correct. Using the correct
RBI values, SG&A is 19.39 percent, as opposed to the 19.34 percent used
in the final determination.
Allegation 10
Respondents assert that the Department incorrectly deducted a value
for marine insurance from Minmetal's USP.
Petitioners' rebuttal does not deviate substantially from the
Department's finding below.
DOC Position
The verification report of Minmetal states that ``we noted no
discrepancies with respect to the marine insurance information reported
in Minmetal's responses and U.S. sales listing.'' The verification
report also states that the ``marine insurance was contracted with a
Chinese company'' and that ``Minmetal was invoiced in U.S. dollars.''
Accordingly, the Department's deduction of a surrogate value for marine
insurance from Minmental's USP was appropriate and did not represent a
clerical error.
Scope of Order
The product covered by this order is manganese metal, which is
composed principally of manganese, by weight, but also contains some
impurities such as carbon, sulfur, phosphorous, iron and silicon.
Manganese metal contains by weight not less than 95 percent manganese.
All compositions, forms and sizes of manganese metal are included
within the scope of this investigation, including metal flake, powder,
compressed powder, and fines. The subject merchandise is currently
classifiable under subheadings 8111.00.45.000 and 8111.00.60.00 of the
Harmonized Tariff schedule of the United States (HTSUS).
Although the HTSUS subheadings are provided for convenience and
customs purposes, our written description of the scope of this
proceeding is dispositive.
Antidumping Duty Order
In accordance with section 735(a) of the Act, on October 27, 1995,
the Department made its final determination that manganese metal from
the PRC was being sold at less than fair value (60 FR 56045 (November
6, 1995)). On December 15, 1995, the International Trade Commission
notified the Department of its final determination, pursuant to section
735(b)(1)(A)(i) of the Act, that an industry in the United States is
materially injured by reason of imports of the subject merchandise.
Therefore, all unliquidated entries of manganese metal from the PRC
entered, or withdrawn from warehouse, for consumption on or after June
14, 1995, which is the date on which the Department published its
notice of preliminary determination in the Federal Register (see 60 FR
31282 (June 14, 1995)), are liable for the assessment of antidumping
duties.
In accordance with section 736(a)(1) of the Act, the Department
will direct Customs officers to assess, upon further advice by the
administering authority, antidumping duties equal to the amount by
which the foreign market value of the merchandise exceeds the United
States price for all relevant entries of manganese metal from the PRC.
Customs officers must require, at the same time as importers would
normally deposit estimated duties on this merchandise, a cash deposit
equal to the estimated weighted-average antidumping duty margins as
noted below. The ``PRC-wide'' rate applies to all exporters of subject
merchandise not specifically listed below.
The ad valorem weighted-average dumping margins are as follows:
[[Page 4418]]
------------------------------------------------------------------------
Margin
Manufacture/producer/exporter Percent
------------------------------------------------------------------------
CEIEC......................................................... 11.77
CMIECHN/CNIECHN............................................... 0.97
HIED.......................................................... 4.60
Minmetal...................................................... 5.88
PRC-wide Rate................................................. 143.32
------------------------------------------------------------------------
This notice constitutes the antidumping duty order with respect to
manganese metal from the PRC pursuant to section 736(a) of the Act.
Interested parties may contact the Central Records Unit, Room B-099 of
the Main Commerce Building, for copies of an updated list of
antidumping orders currently in effect.
This order is published in accordance with section 736(a) of the
Act and 19 CFR 353.21.
Dated: January 19, 1996.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 96-2368 Filed 2-5-96; 8:45 am]
BILLING CODE 3510-DS-M