[Federal Register Volume 62, Number 74 (Thursday, April 17, 1997)]
[Notices]
[Pages 18744-18747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9971]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-412-810]
Certain Hot-Rolled Lead and Bismuth Carbon Steel Products From
the United Kingdom; 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; certain hot-rolled lead and bismuth carbon steel products from
the United Kingdom.
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SUMMARY: On December 10, 1996, the Department of Commerce (the
Department) published the preliminary results of its administrative
review of the antidumping duty order on certain hot-rolled lead and
bismuth carbon steel products from the United Kingdom. The review
covers one manufacturer/exporter and the period March 1, 1995 through
February 29, 1996.
We gave interested parties an opportunity to comment on our
preliminary results. Based on our analysis of the comments received,
and the correction of certain clerical errors, we have changed the
results from those presented in the preliminary results of review.
EFFECTIVE DATE: March 17, 1997.
FOR FURTHER INFORMATION CONTACT: G. Leon McNeill or Maureen Flannery,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202) 482-4733.
Applicable Statute
Unless otherwise indicated, all citations to the statute are
references to the provisions effective January 1, 1995, the effective
date of the amendments made to the Tariff Act of 1930 (the Act) by the
Uruguay Round Agreements Act (URAA). In addition, unless otherwise
indicated, all citations to the Department's regulations are to the
current regulations, as amended by the interim regulations published in
the Federal Register on May 11, 1995 (60 FR 25130).
SUPPLEMENTARY INFORMATION:
Background
On December 10, 1996, the Department published in the Federal
Register (61 FR 65022) the preliminary results of its administrative
review of the antidumping duty order on certain hot-rolled lead and
bismuth carbon steel products from the United Kingdom (58 FR 15324,
March 22, 1993). The Department has now completed the review in
accordance with section 751 of the Act.
Scope of the Review
The products covered by this review are hot-rolled bars and rods of
nonalloy or other alloy steel, whether or not descaled, containing by
weight 0.03 percent or more of lead or 0.05 percent or more of bismuth,
in coils or cut lengths, and in numerous shapes and sizes. Excluded
from the scope of this review are other alloy steels (as defined by the
Harmonized Tariff Schedule of the United States (HTSUS) Chapter 72,
note 1(f)), except steels classified as other alloy steels by reason of
containing by weight 0.4 percent or more of lead, or 0.1 percent or
more of bismuth, tellurium, or selenium. Also excluded are semi-
finished steels and flat-rolled products. Most of the products covered
in this review are provided for under subheadings 7213.20.00 and
7214.30.00.00 of the HTSUS. Small quantities of these products may also
enter the United States under the following HTSUS subheadings:
7213.31.30.00, 60.00; 7213.39.00.30, 00.60, 00.90; 7214.40.00.10,
00.30, 00.50; 7214.50.00.10, 00.30, 00.50; 7214.60.00.10, 00.30, 00.50;
and 7228.30.80.00. HTSUS subheadings are provided for convenience and
Customs purposes. The written description of the scope of this order
remains dispositive.
This review covers one manufacturer/exporter of certain hot-rolled
lead and bismuth steel products, British Steel Engineering Steels
limited (BSES), formerly United Engineering Steels Limited (UES), and
the period March 1, 1995 through February 29, 1996.
Duty Absorption
As part of this review, we are considering, in accordance with
section 751(a)(4) of the Act, whether BSES absorbed antidumping duties.
See the preliminary results of this review (61 FR 65022, December 10,
1996). For these final results of review, we find that antidumping
duties have been absorbed by BSES. For a further discussion of this
issue, see comments 1 and 2 below.
Analysis of the Comments Received
We gave interested parties an opportunity to comment on the
preliminary results of review. We received comments and rebuttal
comments from the petitioner, Inland Steel Bar Co., and BSES.
Comment 1: BSES contends that the Department lacks the authority to
conduct a duty absorption inquiry in this, the third administrative
review of this case, because the Act only permits such inquiries to be
made in the second and fourth administrative reviews after the order is
published.
Petitioner maintains that the Department was correct in conducting
this duty absorption inquiry. Petitioner contends that BSES ignores the
fact that, because this order was in effect on January 1, 1995, it is a
transition order under the Act. Petitioner argues that the issue date
for transition orders, as prescribed by the Act for the interpretation
of sunset-related deadlines, is not the date of the original Federal
Register publication, but rather the effective date of the World Trade
Organization (WTO) agreement, January 1, 1995. As support for its
argument, petitioner cites the URAA, Statement of Administrative Action
(SAA) in H.R. Doc. No. 316, 103d Cong., 2nd Sess. (1994) at 882.
Petitioner also contends that section 351.213(j) of the
Department's proposed antidumping regulations follows this timing
interpretation and provides that for transition orders, if requested,
the Department will make an absorption inquiry for administrative
reviews initiated in 1996. According to petitioner, the preamble to the
proposed antidumping regulations states explicitly that, for transition
orders, ``reviews initiated in 1996 will be considered initiated in the
second year and reviews initiated in 1998 will be considered initiated
in the fourth year.''
Department's Position: We disagree with BSES that the Department
lacks the authority to conduct a duty absorption inquiry in this
review. Because the order for the subject merchandise was in existence
as of the date the WTO agreement entered into force with respect to the
United States, it is deemed to be a transition order. See section
751(c)(6)(C) of the Act. See also the SAA at 882. With respect to
transition orders, section 351.213(j)(2) of the Department's proposed
antidumping regulations explains that the Department will conduct a
duty
[[Page 18745]]
absorption inquiry, if requested, beginning in the second year of
review of such orders. See 61 FR 7307, 7366 (February 27, 1996). The
preamble to the proposed antidumping regulations states that, for
transition orders, ``reviews initiated in 1996 will be considered
initiated in the second year and reviews initiated in 1998 will be
considered initiated in the fourth year.'' 61 FR at 7317. (Although
these proposed antidumping regulations are not yet binding upon the
Department, they do constitute a public statement of how the Department
expects to proceed in construing section 751(a)(4) of the amended
statute. Because this review was initiated in 1996, the Department's
duty absorption is deemed to be undertaken in the second year of
review.)
Comment 2: BSES maintains that, if the Department declines to
terminate the absorption inquiry, it must find that BSES has not
absorbed antidumping duties. BSES further maintains that the existence
of dumping margins does not necessarily mean that duty absorption has
occurred. If this were the case, then the Department's obligation to
conduct an absorption review would be meaningless, and there would be
no need for a separate inquiry by the Department and the International
Trade Commission (ITC).
BSES further maintains that the question of liability for
antidumping duties is fundamentally different from the question of
absorption in that the absorption inquiry involves at least two very
distinct concepts that differentiate it from the ordinary dumping
analysis. First, the absorption inquiry is intended to provide
information to the ITC for consideration in a future sunset review. See
sections 751(a)(4) and 752(a)(1)(D) of the Act. Secondly, BSES
maintains that the Department should recognize that the small dumping
margins that BSES has not yet succeeded in eliminating are not evidence
of absorption.
BSES contends that, in determining whether a respondent's pricing
policies demonstrate an intent to pass on or absorb duties, the
Department may and should consider a respondent's sales prices in the
aggregate and thus should offset the sale-specific dumping margins
found in the review by the negative margins found in the review. BSES
notes that the Department's preliminary review results found that BSES
had a very low dumping margin and argues that the Department should
recognize that BSES's pattern of pricing shows that it has
conscientiously raised its prices and reduced its margin and thus has
not absorbed antidumping duties. BSES recognizes the Department's
traditional methodology of setting negative dumping margins at zero in
the calculation of the weighted-average dumping margin, but argues that
there is no policy reason to ignore negative margins in duty absorption
inquiries, and that there certainly is no such requirement in the
statute or regulations.
Petitioner maintains that, during the debates over the URAA, the
domestic industry pointed out that the full remedial impact of dumping
duties was not always reflected in the marketplace. Petitioner argues
that, although 19 CFR 353.26 (1994) prohibited an exporter from
reimbursing an importer of record for antidumping duties, nothing
prohibited a respondent from acting as an importer of record, and
thereby absorbing underpayment of duties. As a result, Congress amended
the statute to direct the Department to identify these instances of
duty absorption because they could be relevant in the Commission's
sunset review determination on the likelihood of continuing or
recurring material injury if an antidumping order is revoked.
Department's Position: We disagree with BSES. An investigation as
to whether there is duty absorption does not simply involve reading the
margin of the final results. As the Department noted in the preliminary
results of this review, the determination that duty absorption exists
is also based on the lack of any information on the record that the
first unrelated customer will be responsible for paying the duty that
is ultimately assessed. Absent such an irrevocable agreement between
the affiliated U.S. respondent and the first unrelated customer, there
is no basis for the Department to conclude that the duty attributable
to the margin is not being absorbed by the respondent.
This is an instance where the existence of a margin raises an
initial presumption that the respondent is, in fact, absorbing the
duty. As such, the burden of producing evidence to the contrary shifts
to the respondent. See Creswell Trading Co., Inc. v. United States, 15
F.3d 1054 (Fed. Cir. 1994). Here, the respondent has failed to place
evidence on the record in support of its position that it is not
absorbing the duties. Further, while the fact that respondent's margin
has fallen indicates that the level of dumping has decreased, it does
not indicate the absence of duty absorption in this review period, as
there is still a positive margin.
We disagree with BSES that negative and positive margins should be
aggregated. The Department treats so-called ``negative'' margins as
being equal to zero in calculating a weighted-average margin because
otherwise exporters would be able to mask their dumped sales with non-
dumped sales. See Final Determination of Sales at Less Than Fair Value;
Professional Electric Cutting Tools and Professional Electric Sanding/
Grinding Tools from Japan, 58 FR 30149 (May 26, 1993). It would be
inconsistent on one hand to calculate margins using positive margin
sales, which is the Department's practice, and then argue, in effect,
that there are no margins because credit should be given for nonmargin
sales. Thus, those sales which are used to determine whether there are
margins should also be used to determine whether there is duty
absorption.
Whether or not respondents ``intended'' to absorb duties is also
irrelevant to the Department's inquiry. The Act does not provide a
basis for the Department to render judgements on the intentions of
respondents, but instead to make an empirical finding as to whether
absorption is occurring.
Comment 3: Petitioner claims that some grades of scrap purchased by
BSES from its affiliated parties were not at arm's-length transaction
prices. If the scrap price from BSES's affiliated supplier is less than
the scrap price from its unaffiliated supplier, petitioner claims, it
is not an arm's-length transaction. To account for such grades that
were not at arm's-length prices, petitioner maintains that the
Department should increase BSES's total cost of production by the
difference between the price paid to affiliated parties and the price
paid to unaffiliated parties. Petitioner contends that the overall
average for all grades of scrap does not recognize that individual
grades of scrap may not have been purchased from affiliated parties in
an arm's-length transaction. As support for its argument, petitioner
cites 19 U.S.C.A. 1677b(f)(2) (1996 Supp.); also, Final Results of
Antidumping Duty Administrative Review; Dynamic Random Access Memory
Semiconductors of One Megabit or Above From the Republic of Korea, 61
FR 20216, 20221 (May 6, 1996); Final Results of Antidumping Duty
Administrative Review; Tapered Roller Bearings, Four Inches or Less in
Outside Diameter, and Certain Components Thereof, from Japan, 56 FR
65228, 65237 (December 16, 1991); and Final Determination of Sales at
Less Than Fair Value; Certain Granite Products From Italy, 53 FR 27187,
27193 (July 19, 1988).
BSES contends that scrap is not a uniform commodity with a single,
stable, established price. The market is
[[Page 18746]]
volatile, with prices varying from period to period and from supplier
to supplier. BSES claims that each month it and its suppliers assess
the market and negotiate the price for each grade of scrap to be
purchased in the coming month. The relationship does not affect the
negotiated price. BSES further claims that both affiliated and
unaffiliated suppliers sell to BSES in a tight cluster of prices that
hover closely to theoretical market price, which sometimes is slightly
higher than the average and sometimes slightly lower, but always
dictated by the going market price. BSES notes that, out of 21 grades
supplied by both affiliated and unaffiliated suppliers, affiliated
suppliers' average prices were higher for 12 of these grades and
unaffiliated suppliers higher for 9 grades. BSES maintains that the
affiliated scrap prices for many of the grades are understated, since
its most important affiliated suppliers do not include freight to
BSES's location in their prices while the unaffiliated suppliers sell
on a delivered basis. BSES notes that, where scrap sales were made on
an ex-factory basis, BSES included its freight expense in the material
cost used in the reporting of the cost of production and constructed
value (CV). BSES claims that petitioner has distorted its scrap data,
to conclude that the data show affiliated prices to be generally lower
than unaffiliated prices.
Department's Position: We agree with BSES that scrap purchases from
affiliated suppliers were made at arm's-length prices, and that
therefore no adjustment to scrap prices is warranted. As BSES notes,
the overall weighted-average price for all grades of scrap during the
fiscal year is somewhat higher from affiliated suppliers than from
unaffiliated suppliers. See memorandum to the file from Leon McNeill,
April 9, 1997.
Comment 4: Petitioner argues that, for the upcoming administrative
review, the Department should require respondent to allocate each
individual rebate over only those sales benefitting from the rebate
rather than over all sales.
BSES contends that no changes should be made to the Department's
analysis in either this review or future reviews.
Department's Position: Since this comment refers to an upcoming
administrative review of this order, it is not relevant to this review.
Therefore, for these final results, the Department has not taken any
action on this issue.
Comment 5: BSES argues that the Department failed to make a
circumstance-of-sale (COS) adjustment for home market imputed credit
expenses for CV comparisons. BSES notes that, in the preliminary
results, the Department added imputed U.S. credit expenses to the
foreign unit prices in dollars (FUPDOL). However, it failed to make a
corresponding adjustment for home market credit expenses by subtracting
such expenses from the CV. BSES suggests that the Department make this
correction by calculating separately a weighted-average imputed home
market credit expense in addition to the total actual direct selling
expenses, and then deducting the weighted average home market credit
expenses from CV. BSES maintains that the Department's normal value
calculation methodology recognizes that home market price includes all
cost and expenses, including imputed credit expense, since the
Department makes a COS adjustment for this expense in price-to-price
comparisons. Similarly, a COS adjustment is also required for CV, since
imputed credit expenses are included in CV. BSES cites section 773(e)
of the Act, which directs the Department to calculate CV as the sum of
actual expenses incurred in the manufacture of the product sold in the
United States, plus the actual selling expenses from the home market
sales file, plus general and administrative expenses (including net
interest expense), plus the actual profit realized on home market
sales. BSES argues that since the Department added imputed U.S. credit
to the FUPDOL, to ensure a fair comparison it must correspondingly
deduct home market credit from CV. BSES contends that the Department's
Office of Accounting has endorsed the methodology and it is also
reflected in the following cases: Final Results of Administrative
Review: Certain Welded Carbon Steel Pipe and Tube from Turkey, 61 FR
69067 (December 31, 1996) and Final Determination of Sales at Less Than
Fair Value; Large Newspaper Printing Presses from Japan (LNPPs from
Japan), 61 FR 38139, 38147-48 (July 23, 1996).
Petitioner argues that since the Department did not include home
market imputed credit in CV, it is not appropriate to deduct a home
market credit expense from CV. Petitioner notes that although the
Department has reached the opposite conclusion in several recent cases,
including LNPPs from Japan, as cited by BSES, it should apply the pre-
URAA policy of adjusting CV for imputed credit expenses.
Department's Position: We agree with BSES that a COS adjustment
should be made for home market imputed credit expenses in CV
comparisons. Under the URAA, for both COP and CV, the statute provides
that selling, general and administrative expenses be based on actual
amounts incurred by the exporter for production and sale of the foreign
like product. Consistent with section 773(a)(6) of the Act, adjustments
to normal value are appropriate where CV is the basis of normal value.
The Department uses imputed credit expenses to measure the effect of a
specific respondent's selling practices in the United States and the
comparison market. See Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof from France, Germany, Italy, Japan,
Singapore, and the United Kingdom; Final Results of Administrative
Reviews, 62 FR 2119-20 (January 15, 1997). Because export price is the
basis for United States price in this review, the adjustment entails
adding U.S. imputed credit to the CV, and subtracting home market
imputed credit from the CV. The U.S. imputed credit was added for the
preliminary results; for these final results, we have also subtracted
the home market imputed credit. See section 773(a)(6)(c)(iii) of the
Act.
Comment 6: BSES contends that the Department inadvertently deducted
the home market quantity adjustment twice at lines 149 and 321 of the
preliminary margin program.
Department's Position: We agree with BSES and have revised our
computer programming language accordingly for these final results of
review.
Comment 7: BSES argues that the Department erroneously applied a
conversion factor to U.S. credit insurance. BSES claims that, since
U.S. credit insurance is denominated in U.S. dollars, applying the
conversion factor is incorrect.
Department's Position: We agree with BSES and have revised our
computer programming language accordingly for these final results of
review.
Comment 8: BSES maintains that the Department erred in converting
U.S. packing from pounds sterling to U.S. dollars twice in calculating
the FUPDOL for both price-to-price and CV comparisons.
Department's Position: We agree with BSES and have revised our
computer programming language accordingly for these final results.
Comment 9: BSES claims that the Department misspelled the
commission offset variable in the preliminary margin program. As a
result, the commission offset was not applied to the FUPDOL for price-
to-price comparisons where the U.S. commissions are greater than or
equal to the home market indirect selling expenses.
Department's Position: We agree with BSES, and have revised our
computer
[[Page 18747]]
programming language accordingly for these final results.
Comment 10: Petitioner argues that the Department inadvertently
used the field MONTHU to establish the year for a concordance entry.
Department's Position: We agree with petitioner. Accordingly, for
these final results, we have revised our computer programming language
to make the appropriate clerical error correction.
Correction of Clerical Error
For the preliminary results, we failed to include direct selling
expenses, indirect selling expenses, and U.S. packing expenses in the
amount by which the profit ratio was multiplied in calculating CV
profit. For these final results, we have included these expenses in the
calculation of CV profit.
Final Results of Review
As a result of our review, we determine that the following
weighted-average margin exists:
------------------------------------------------------------------------
Margin
Manufacturer/exporter Period of review (percent)
------------------------------------------------------------------------
British Steel Engineering Steels Limited
(BSES)(formerly United Engineering Steels
Limited)................................. 3/1/95-2/29/96 4.56
------------------------------------------------------------------------
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. Individual
differences between export price and normal value may vary from the
percentage stated above. Because there is a concurrent review of the
countervailing duty order on the subject merchandise, final assessments
for BSES will reflect the final results of the countervailing duty
administrative review in accordance with 19 CFR 353.41(d)(iv). The
Department will issue appraisement instructions directly to the Customs
Service.
Furthermore, the following deposit requirements will be effective
upon publication of this notice of final results of review for all
shipments of certain hot-rolled lead and bismuth carbon steel products
from the United Kingdom entered, or withdrawn from warehouse, for
consumption on or after the publication date, as provided by section
751(a)(1) of the Act: (1) The cash deposit rate for the reviewed
company will be the rate listed above; (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 (LTFV)
investigation, 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) for all other producers and/or exporters of
this merchandise, the cash deposit rate shall be 25.82 percent, the
``all others'' rate established in the LTFV investigation (58 FR 6207,
January 27, 1993). These deposit requirements shall remain in effect
until publication of the final results of the next administrative
review.
This notice serves as a final 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 subsequent assessment
of double antidumping duties.
Notification to Interested Parties
This notice also serves as a reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 353.34(d). Timely written notification of
return/destruction of APO materials or conversion to judicial
protective order is hereby requested. Failure to comply with the
regulations and the terms of an APO is a sanctionable violation.
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: April 9, 1997.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 97-9971 Filed 4-16-97; 8:45 am]
BILLING CODE 3510-DS-P