[Federal Register Volume 63, Number 177 (Monday, September 14, 1998)]
[Notices]
[Pages 49085-49089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24598]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-427-009]


Industrial Nitrocellulose From France: 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.

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SUMMARY: On May 11, 1998, the Department of Commerce published the 
preliminary results of administrative review of the antidumping duty 
order on industrial nitrocellulose from France. The review covers 
Bergerac, N.C. (formerly identified by the name of its parent company, 
Societe Nationale des Poudres et Explosifs), and its affiliates for the 
period August 1, 1996, through July 31, 1997.
    We gave interested parties an opportunity to comment on the 
preliminary results. Based on our analysis of comments received, we 
have made a change in the margin calculations and corrected a 
ministerial error. Therefore, the final results differ from the 
preliminary results.

EFFECTIVE DATE: September 14, 1998.

FOR FURTHER INFORMATION CONTACT: William Zapf or Lyn Johnson, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, Washington, D.C. 20230; telephone: (202) 482-4733.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (the Tariff Act), are references to the provisions 
effective January 1, 1995, the effective date of the amendments made to 
the Act by the Uruguay Round Agreements Act (URAA). In addition, unless 
otherwise indicated, all citations to the Department's regulations are 
to the regulations codified at 19 CFR Part 351 (62 FR 27295 (May 19, 
1997)).

Background

    On May 11, 1998, the Department of Commerce (the Department) 
published in the Federal Register (63 FR 25828) the preliminary results 
of review of the antidumping duty order on industrial nitrocellulose 
(INC) from France. The period of review (the POR) is August 1, 1996, 
through July 31, 1997. We invited parties to comment on our preliminary 
results of review. On June 10, 1998, and June 15, 1998, we received 
case and rebuttal briefs from the respondent, Bergerac, N.C. 
(Bergerac), and the petitioner, Hercules Incorporated (Hercules). A 
public hearing was held on June 18, 1998. Subsequently, we requested 
that Bergerac revise its case brief which contained new and untimely 
information. We also requested that Bergerac provide additional 
information. Bergerac filed responses to our requests on July 13, 1998, 
and July 20, 1998, respectively. The Department has conducted this 
administrative review in accordance with Section 751 of the Tariff Act.

Scope of Review

    The product covered by this review is INC containing between 10.8 
and 12.2 percent nitrogen. INC is a dry, white, amorphous synthetic 
chemical produced by the action of nitric acid on cellulose. The 
product comes in several viscosities and is used to form films in 
lacquers, coatings, furniture finishes and printing inks. Imports of 
this product are classified under the HTS subheadings 3912.20.00 and 
3912.90.00. The HTS item numbers are provided for convenience and 
customs purposes. The written descriptions of the scope of this 
proceeding remain dispositive.

Analysis of Comments Received

    Comment 1: Bergerac argues that, in applying the ``special rule'' 
for merchandise with value added after importation under Section 772(e) 
of the Tariff Act, the Department should use as a proxy for these sales 
the margin calculated for sales to an unaffiliated customer which 
purchased identical merchandise, rather than the margin the Department 
calculated on all sales of subject merchandise. To support its 
argument, Bergerac cites Section 772(e) of the Tariff Act which 
provides that, for further-manufactured merchandise in which the value 
added in the United States is likely to exceed substantially the value 
of the subject merchandise, the Department shall use either the price 
of identical merchandise sold to an unaffiliated person or the price of 
other subject merchandise sold to an unaffiliated person to determine 
constructed export price (CEP). While recognizing that the statute does 
not express a clear preference for either of these options, Bergerac 
notes that, in the preamble to the new regulations, the Department has 
stated ``whether merchandise is identical may be a factor to consider 
in selecting the sales to be substituted for the value added sales,'' 
citing Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 
27296, 27296 (May 19, 1997) (Final Rule). Bergerac also cites to 19 CFR 
351.402 which states that, for the purposes of determining dumping 
margins under the special rule above, ``the Secretary may use the 
weighted-average dumping margins calculated on sales of identical or 
other subject merchandise sold to unaffiliated persons.''
    Furthermore, Bergerac insists, the use of the term ``unaffiliated 
person'' in the statute requires the use of a margin calculated on 
sales to the first purchaser of subject merchandise in the United 
States. However, Bergerac contends, by including the margin calculated 
for its sales through SNPE N.A., an affiliated company, in its 
calculation of the proxy margin, the Department is using a margin 
calculated on resales by an affiliated distributor. To interpret 
``unaffiliated person'' to mean unaffiliated customers of SNPE, 
Bergerac continues, would render the term ``unaffiliated person'' 
superfluous in the statute since all margins are based on sales to 
unaffiliated persons.
    Hercules responds that, in the preamble to the Department's new 
regulations to which Bergerac refers, the Department merely restates 
the content of Section 772(e) of the Tariff Act, citing Final Rule at 
27353. Hercules notes that, in this same discussion, the Department 
stated that it had little experience with this new statutory provision 
and, therefore, was not in a position to provide a great deal of 
guidance at that time. Nevertheless, Hercules notes that the Department 
subsequently enunciated a preference for using both identical and other 
merchandise in Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or 
Less in Outside Diameter, and Components Thereof, From Japan, 
Preliminary Results of Antidumping Duty Administrative Reviews, 62 FR 
47452 (September 9, 1997).
    Moreover, Hercules argues that, had the Department looked only to 
sales to one unaffiliated customer, as suggested by Bergerac, the 
Department would have

[[Page 49086]]

taken into account only a small fraction of respondent's U.S. sales and 
ignored the majority of Bergerac's U.S. sales. Therefore, Hercules 
concludes that the Department's use of the weighted-average margin for 
all other U.S. sales as a proxy margin for sales of merchandise with 
value added was reasonable and proper under the statute and 
regulations.
    Department's Position: The purpose of the special rule is to reduce 
the Department's administrative burden. See the Statement of 
Administrative Action accompanying the Uruguay Round Agreements Act, 
H.R. Doc. 316, Vol. 1, 103d Congress (1994) (SAA) at 826. Moreover, the 
statute does not specify a hierarchy between the alternative methods of 
using identical or other subject merchandise to establish export price 
(EP). Id. Therefore, it is within the Department's discretion to select 
an appropriate method to determine the assessment rate for merchandise 
the Department has not examined under the special rule.
    After reviewing Bergerac's submitted data, we have determined that 
the use of both identical and other subject merchandise is an 
appropriate basis for determining the dumping margins for Bergerac's 
sales subject to the special rule. If we were to use only the margin we 
calculated on sales to one unaffiliated customer of merchandise 
identical to the value-added merchandise, as suggested by Bergerac, we 
would ignore the majority of U.S. sales and the pricing practices that 
these sales entail. This is consistent with the statutory language and 
legislative history which explicitly permit the Department to reject a 
particular alternative when there is not a sufficient quantity of sales 
to provide a reasonable basis for comparison. See Section 772(e) of the 
Tariff Act and the SAA at 826.
    We also disagree with Bergerac's argument that we should not use 
sales in the United States made by its U.S. affiliate. In accordance 
with Section 772(b) of the Act, such sales are used as the basis for 
establishing U.S. price. Therefore, it is appropriate to include such 
sales in the alternative methodology. See also 19 CFR 351.402(c).
    Comment 2: Bergerac argues that the Department should include the 
sales value of the imported subject merchandise which was further-
manufactured and the estimated duties on those entries in the weighted-
average margin calculations. As support for its argument, Bergerac 
points to the Department's analysis memorandum dated April 17, 1998, 
which states that the Department calculated the weighted-average margin 
based on the total value of sales in the United States and their total 
antidumping duties; however, Bergerac argues that, contrary to the 
statement in the April 17, 1998, memorandum, the calculations do not 
include the value of sales of imported merchandise with value added or 
the estimated duties attributed to these sales. Bergerac requests that 
the Department revise its weighted-average margin to include such sales 
value and duties.
    Hercules asserts that the Department was correct in not including 
the sales value of imported merchandise with value added or the amount 
of the antidumping duty margin attributed to the sales of these 
products in the weighted-average margin calculations. In this case, 
Hercules contends, the sales of merchandise with value added are, by 
definition, calculated on a surrogate basis under the ``special rule'' 
provisions of Section 772(e) in order to save the Department the 
administrative burden of factoring out an exact margin on INC subject 
to the special rule.
    Department's Position: We disagree with Bergerac that we should 
change our methodology for calculating its weighted-average margin. 
Based on our methodology, adding surrogate numbers to the numerator and 
denominator in our margin calculations would not change the results. As 
explained in our response to Comment 1, we are using the margin 
calculated on all of Bergerac's other sales as the surrogate for 
Bergerac's further-manufactured sales subject to the special rule. 
Consequently, any figures added to both the numerator and denominator 
of the margin calculation would only ensure the same result. Also, we 
disagree with Bergerac's comment that our analysis memorandum 
misleadingly refers to the use of total value of U.S. sales and their 
total duties. We stated clearly in a footnote on page 1 of that 
memorandum that ``the total dumping margin and U.S. value are based 
solely on products sold as entered into the United States.'' It is 
clear that this statement excludes further-manufactured merchandise 
since such merchandise was not ``sold as entered.''
    Comment 3: Bergerac argues that the Department should use sales to 
distributors in France, who in turn sold the foreign like product to 
third countries, to calculate a level-of-trade adjustment instead of 
making a CEP-offset adjustment to normal value. Bergerac claims that 
the Department should not reject such sales on the grounds that 
Bergerac had knowledge of the ultimate destination. Bergerac notes that 
one of the statutory requirements for making a CEP-offset adjustment, 
instead of a level-of-trade adjustment, is that the data available do 
not provide an appropriate basis to determine whether the difference in 
levels of trade affects price comparability, citing 19 CFR 351.412(d). 
Bergerac argues that, since information is available, the application 
of a CEP offset is inappropriate and that a level-of-trade adjustment 
is required.
    Bergerac argues that, unless it can be proven that there is a 
reason to believe that sales to distributors in France are not 
representative, such sales should be used for the purpose of 
determining a level-of-trade adjustment. Bergerac insists that the use 
of the term ``sold for consumption'' in the definition of normal value 
should not lead to the conclusion that such sales cannot be used for 
quantifying a level-of-trade adjustment. Bergerac also argues that, in 
a future administrative review, the ultimate destination of these sales 
may be unknown since there is no restriction on distributors to prevent 
them from selling the merchandise in France.
    Bergerac points out that the SAA (at 830) gives the Department 
considerable discretion in determining levels of trade. Similarly, 
Bergerac notes that, in situations in which there may be no usable 
sales of the foreign like product at a level of trade comparable to the 
EP or CEP level of trade, the preamble to the new regulations states: 
``...the Department will examine price differences in the home market 
either for sales of broader or different product lines or for sales 
made by other companies'' (Final Rule at 27372). Bergerac argues that, 
if the Department may use sales of other producers, or other products 
in different time periods, then the Department should be able to use 
sales of the same product by the same producer, despite the fact that 
sales in the home market are later sold for export. Bergerac concludes 
by urging the Department to exercise its considerable discretion in 
this new area of the law so that a fair comparison can be achieved for 
Bergerac's U.S. distributor sales.
    Hercules responds that the Department denied a level-of-trade 
adjustment to Bergerac properly. Citing Section 773(a)(7)(A) of the 
Tariff Act, Hercules argues that the amount of a level-of-trade 
adjustment should be based on the price difference ``between the two 
levels of trade in the country in which normal value is determined.'' 
Hercules points out that the additional distributor sales that Bergerac 
reported belatedly in a supplemental response do not constitute a 
second level of trade. These sales, Hercules contends, are clearly 
export sales and Hercules points

[[Page 49087]]

out that Bergerac acknowledged this fact in statements throughout its 
original questionnaire.
    Department's Position: We agree with Hercules that Bergerac's sales 
to distributors in France for export should not be used as a basis for 
determining a level-of-trade adjustment. As we noted on page 3 of our 
analysis memorandum dated April 17, 1998, Section 773(a)(7)(A)(ii) of 
the Tariff Act requires us to evaluate the basis for a level-of-trade 
adjustment based on sales at different levels of trade in the country 
in which normal value is determined. According to Section 
773(a)(1)(B)(i), the sales at issue could not be used to calculate 
normal value since Bergerac knew that the products were sold for 
export; i.e., they were not sold for consumption in the exporting 
country. Moreover, it would be inappropriate to compare prices to two 
or more different markets (Bergerac's home-market sales with its export 
sales) to calculate a level-of-trade adjustment since it would not be 
possible to distinguish the price differences due to the different 
markets from the price differences due to any level-of-trade 
differences. For these reasons, we have not made any changes to our 
level-of-trade determination for these final results of review.
    Comment 4: Bergerac contends that the Department included certain 
sample and trial sales in its home-market database improperly. The 
Department should exclude these sample and trial sales from its 
calculation of normal value, Bergerac argues, because respondent has 
provided sufficient evidence that such sales are outside the ordinary 
course of trade. Regarding sample transactions, Bergerac asserts that, 
while the Department excluded free samples from its calculations 
properly, it should also have eliminated samples which were sold for 
monetary consideration (priced samples). As evidence to support its 
argument, Bergerac points out that the product code included on the 
invoices for these sales contains a suffix which demonstrates that they 
are samples. Furthermore, Bergerac states the price for these samples 
was high to cover the relatively high cost of shipping and packaging 
small quantities.
    In addition, Bergerac asserts that its trial sales were outside the 
ordinary course of trade. Bergerac argues that, in a supplemental 
response, it submitted letters from the customers which demonstrate 
that each transaction was for testing purposes only. Bergerac also 
contends that the grade of nitrocellulose sold in these cases is a 
grade that normally is not sold in France.
    While recognizing that the Department determined properly that its 
priced samples and trial sales were ``sales'' because they did not lack 
consideration in accordance with NSK Ltd. v. United States, 115 F. 3d 
965, 975 (CAFC 1997) (NSK), Bergerac contends that, in its 
determination to retain these transactions, the Department relied 
improperly on this qualification alone and did not determine whether 
the sales were outside the ordinary course of trade. Bergerac asserts 
that NSK is inapplicable to this situation because it dealt with 
certain transactions which were not sales and did not address whether 
certain sales were outside the ordinary course of trade.
    Bergerac asserts that, in determining whether these sales are 
outside the ordinary course of trade, the Department must consider all 
of the circumstances surrounding the sales in question, citing 19 
C.F.R. 351.102(b), Murata Mfg. Co. v. United States, 820 F. Supp. 603, 
606-7 (Court of International Trade (C.I.T.) 1993) (Murata), and 
Laclede Steel Co. v. United States, 18 C.I.T. 965, 1994 WL 591949 
(C.I.T. 1994). Bergerac explains that ``the purpose of the ordinary 
course of trade provision is to prevent dumping margins from being 
based on sales which are not representative,'' citing Monsanto Co. v. 
United States, 698 F. Supp. 275, 278 (C.I.T. 1988). Furthermore, 
Bergerac argues that the Department has recognized that trial and 
sample sales must be excluded from normal value, citing Final 
Determination of Sales at Less Than Fair Value: Antifriction Bearings 
(Other Than Tapered Roller Bearings) from the Federal Republic of 
Germany, 54 FR 18992, 19087 (May 3, 1989), and Antidumping Manual, 
Import Administration, revised February 10, 1998, Chapter 8, pages 9-
10.
    Hercules disagrees with Bergerac, arguing that the Department 
included priced samples and trial sales in its analysis properly. 
Hercules contends that the burden of proof to demonstrate that these 
sales are outside the ordinary course of trade rests clearly on 
Bergerac, citing Tapered Roller Bearings and Parts Thereof, Finished 
and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or 
Less In Outside Diameter, and Components thereof, From Japan, Final 
Results of Antidumping Duty Administrative Reviews, 63 FR 2558 (January 
15, 1998) (Tapered Roller Bearings).
    Citing Murata, Hercules contends that the C.I.T. has found that a 
respondent did not meet its burden of proof merely by claiming that the 
relevant sales were in smaller quantities and at higher prices than 
sales of a different model. Hercules argues that Bergerac did not 
provide certain information regarding these sample and trial 
transactions which the Department requested in a supplemental 
questionnaire. Finally, citing Tapered Roller Bearings, Hercules argues 
that the Department has previously disallowed the requested exclusion 
of sample sales where the respondent has merely stated that the product 
is coded as a sample and that the sample prices are generally higher 
than for larger-volume shipments. Hercules asserts that this is a 
similar situation and that Bergerac has also failed to meet its burden 
of proof in this regard.
    Department's Position: We disagree with Bergerac that we should 
exclude certain home-market sales because they are outside the ordinary 
course of trade. Regarding priced samples, while it is clear that the 
invoices for these sales indicated that they were sample sales, such 
indication is not sufficient to demonstrate that the sale is unique or 
unusual or otherwise outside the ordinary course of trade. See 
Antifriction Bearings (Other Than Tapered Roller Bearings and Parts 
Thereof from France, Germany, Italy, Japan, Singapore, and the United 
Kingdom, Final Results of Antidumping Duty Administrative Reviews, 62 
FR 2081 (January 15, 1997) (where, although we verified that certain 
sales were designated as samples in a respondent's records, we 
determined this was insufficient to find them outside the ordinary 
course of trade since such evidence ``merely proves that respondent 
identified sales recorded as samples in its own records''). Such 
evidence does not indicate that the sales were made outside the 
ordinary course of trade for purposes of calculating normal value in 
this review. Bergerac's argument that these sales were at a high price 
to cover the high cost of shipping small packages does not address the 
Department's ``unique or unusual'' standard concerning ordinary course 
of trade. See Large Newspaper Printing Presses and Components Thereof, 
Whether Assembled or Unassembled, From Germany (61 FR 38166, July 23, 
1996) as discussed in Antifriction Bearings (Other Than Tapered Roller 
Bearings) and Parts Thereof from France, et. al.; Final Results of 
Antidumping Duty Administrative Reviews (62 FR 54043, at 54065-54066, 
October 17, 1997).
    Regarding trial sales which Bergerac claims are outside the 
ordinary course of trade, the respondent has not met its burden to 
demonstrate that these sales are unique or unusual or otherwise outside 
the ordinary course of trade.

[[Page 49088]]

First, while Bergerac claims that it does not usually sell this grade 
of INC in France, it sells this product to the U.S. market frequently 
as indicated by its sales database. Furthermore, although Bergerac 
argues that it submitted letters from each of the trial-sale customers 
demonstrating that, in each case, the product was used for testing 
purposes only, the letters it provided are not convincing. One of the 
letters appears to be from Bergerac to the customer, rather than from 
the customer to Bergerac (as the respondent claims), and does not 
indicate that any testing was conducted (or was to be conducted) by the 
customer. Also, while Bergerac claimed in its January 20, 1998, 
supplemental response that this trial was unsuccessful, it did not 
submit any evidence to establish this fact. Regarding other trial 
sales, another letter from the customer to Bergerac does discuss 
testing, but this letter is dated after our request for documentation 
of the trial sales and not at the time of the sales. (Because of the 
proprietary nature of the contents of these letters, please see the 
August 31, 1998, analysis memorandum for a more detailed discussion of 
this matter.) Finally, we found that these trial sales were made in 
quantities similar to other sales, supporting the possibility that the 
product was used for production purposes.
    Regarding both priced samples and trial transactions, Bergerac 
failed to provide certain information which we requested in a 
supplemental questionnaire specifically in order to determine whether 
these transactions were outside the ordinary course of trade. For 
example, regarding both types of sales at issue, Bergerac did not 
respond as to whether the customer had purchased these particular items 
previously. For these reasons, the record is incomplete as to whether 
sales of these products were made to these customers prior to the dates 
of the claimed sample and trial transactions and we have retained them 
for use in our calculation of normal value.
    We also disagree with Bergerac's assertion that we relied on an 
incorrect standard for determining whether to include claimed sample 
and trial sales in our calculation of normal value. We first evaluated, 
under the NSK standard, whether these transactions were in fact 
``sales'' involving monetary consideration. Where we determined that 
the transactions involved monetary consideration, we then examined, 
based upon information in Bergerac's response, whether these sales were 
within the ordinary course of trade according to Section 771(a)(1)(B) 
of the Tariff Act. (See page 5 of April 17, 1998, Analysis Memo.) 
According to this standard and for reasons discussed above, we find 
that Bergerac has not met its burden of proof in demonstrating that the 
sales in question are outside the ordinary course of trade.
    Comment 5: Hercules argues that, although Bergerac denied that it 
sold any subject merchandise which was below specification, its 
responses demonstrate that Bergerac did not account properly for the 
production of below-specification INC in its sales databases. Hercules 
contends that the Department should instruct Bergerac to submit 
supportive data regarding the production and sale of ``off-spec'' 
merchandise in order to determine whether there were any sales of such 
merchandise in the home market. This additional request for information 
after the preliminary results is necessary, Hercules asserts, because 
the Department must not compare sales of off-spec or less-than-prime 
merchandise to U.S. sales of prime merchandise.
    Bergerac rebuts Hercules' comment by denying that a request for 
supplemental information is necessary, stating that it reexamined its 
quality-control records in response to Hercules' comment. As a result 
of this search, Bergerac identified in its rebuttal brief where it had 
sold off-spec merchandise in the home market. In addition, Bergerac 
contends that it submitted information regarding the production and 
sale of off-spec merchandise, including the proportion of off-spec 
merchandise which it produced and, of that amount, what proportion was 
sold at reduced prices and what proportion was recycled into the 
manufacturing process.
    Department's Position: We agree with Hercules and have obtained 
additional information regarding Bergerac's production and sale of off-
spec merchandise. Based on this information and because there were no 
sales of off-spec merchandise in the United States, we eliminated such 
sales from the calculation of normal value. Consistent with our 
practice, we have changed our methodology to ensure that we did not 
compare home-market sales of off-spec merchandise to U.S. sales of 
prime merchandise. See Steel Wire Rod From Canada; Final Determination 
of Sales at Less Than Fair Value, 63 FR 9182, 9183 (February 24, 1998); 
see also Certain Cold-Rolled Carbon Steel Flat Products from the 
Netherlands; Final Results of Antidumping Duty Administrative Review, 
61 FR 48465, 48466 (September 13, 1996).
    Comment 6: Bergerac argues that the Department should not have 
considered a certain home-market customer to be an affiliated party for 
purposes of its analysis and, therefore, should not have included its 
sales to this customer in its arm's-length test. Bergerac contends 
that, although technically affiliated to Bergerac under Section 771(33) 
of the Tariff Act through a common board member, this company cannot 
influence the prices it pays because there is no link between the board 
member's membership on Bergerac's board and his membership on the 
customer's board. Therefore, Bergerac asserts, the prices paid were at 
arm's length and were not affected by the existence of a common board 
member.
    Hercules argues that the Department was correct in performing the 
arm's-length test on Bergerac's sales to the home-market customer in 
question and that, under section 771(33) of the Tariff Act, a common 
officer or director is sufficient to consider two firms to be 
affiliated. Hercules argues further that, given that the sales failed 
the arm's-length test, the Department excluded them from the 
calculation of normal value properly.
    Department's Position: We disagree with Bergerac that it was 
inappropriate to treat one of its home-market customers as affiliated 
and, therefore, include all sales to that customer in our arm's-length 
test. In its January 20, 1998, supplemental questionnaire response, 
Bergerac reported that, because the chairman of its board of directors 
is also a member of the board of directors of the customer in question, 
the respondent is ``affiliated'' to the customer in question as the 
term is used by the Department. Although it stated that it does not 
consider the customer to be affiliated because the relationship is 
maintained on an arm's-length basis, Bergerac did not raise this issue 
until late in the proceeding and did not provide sufficient information 
to allow the Department to analyze the affiliation issue. Thus, as 
facts available, we are relying on the respondents' statement that the 
customer is affiliated under our standards. Because the customer is 
being treated as affiliated, it was appropriate to include all sales to 
the customer in question in our arm's-length test.
    After conducting the arm's-length test, which is how we determine 
whether an affiliation affects prices in such a way that they should be 
excluded from the calculation of normal values, we found that 
Bergerac's transactions with the customer in question failed the test 
and, thus, it was appropriate to exclude these transactions from our 
calculations.

[[Page 49089]]

Final Results of Review

    As a result of our review, we determine the final weighted-average 
dumping margin for the period August 1, 1996, through July 31, 1997 to 
be as follows:

------------------------------------------------------------------------
                                                                Margin  
                          Company                             (percent) 
------------------------------------------------------------------------
Bergerac...................................................        13.35
------------------------------------------------------------------------

    The Department shall determine, and the U.S. Customs Service shall 
assess, antidumping duties on all appropriate entries. Because the 
inability to link sales with specific entries prevents calculation of 
duties on an entry-by-entry basis, for CEP sales we have calculated an 
ad valorem duty-assessment rate based on the ratio of the total amount 
of antidumping duties calculated for the examined sales made during the 
POR to the total customs value of the sales used to calculate those 
duties. This rate will be assessed uniformly on all entries of that 
particular importer made during the POR. (This is equivalent to 
dividing the total amount of antidumping duties, which are calculated 
by taking the difference between statutory NV and statutory EP or CEP, 
by the total statutory EP or CEP value of the sales compared and 
adjusting the result by the average difference between EP or CEP and 
customs value for all merchandise examined during the POR.) For EP 
sales, Bergerac could not identify the importer(s) of record for sales 
to unaffiliated customers. Therefore, we have calculated a single, per-
unit duty assessment rate by dividing the total dumping margins by the 
total quantity sold to these customers.
    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 these 
final results of this administrative review, as provided by section 
751(a)(1) of the Tariff Act: (1) the cash-deposit rate for Bergerac 
will be 13.35 percent; (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 investigation (LTFV), 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) 
the cash-deposit rate for all other manufacturers or exporters will be 
1.38 percent. This is the ``all others'' rate from the LTFV 
investigation which we are reinstating in accordance with the decisions 
of the Court of International Trade in Floral Trade Council v. United 
States, Slip Op. 93-79 (May 25, 1993), and Federal-Mogul Corporation 
and The Torrington Company v. United States, Slip Op. 93-83 (May 25, 
1993).
    This notice serves as a final reminder to importers of their 
responsibility under 19 C.F.R. 351.402(f) of the Final Rule 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 Department's 
presumption that reimbursement of antidumping duties occurred and the 
subsequent assessment of doubled antidumping duties.
    This notice also serves as the only reminder to parties subject to 
administrative protective orders (APO) of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 C.F.R. 353.34(d) or 
conversion to judicial protective order is hereby requested. Failure to 
comply with the regulations and terms of an APO is a violation which is 
subject to sanction.
    We are issuing and publishing this determination and notice in 
accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.

    Dated: September 4, 1998.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 98-24598 Filed 9-11-98; 8:45 am]
BILLING CODE 3510-DS-P