[Federal Register Volume 67, Number 96 (Friday, May 17, 2002)]
[Notices]
[Pages 35098-35099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12443]



[[Page 35098]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-423-805]


Certain Cut-to-Length Carbon Steel Plate from Belgium; Notice of 
Amended Final Results of Administrative Review in Accordance With Final 
Court Decision Affirming Redetermination

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On December 4, 2001, the United States Court of International 
Trade (CIT) affirmed the Department of Commerce's final remand results 
of the antidumping duty administrative review of certain cut-to-length 
carbon steel plate from Belgium. As there is now a final and conclusive 
court decision in this action, we are amending our final results, and 
we will instruct the Customs Service to liquidate entries subject to 
the review.

EFFECTIVE DATE: May 17, 2002.

FOR FURTHER INFORMATION CONTACT: Mark Hoadley at (202) 482-0666, Office 
of AD/CVD Enforcement VII, Group III, Import Administration, 
International Trade Administration, U.S. Department of Commerce, Room 
7866, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    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 Department of Commerce (Department) 
regulations refer to the regulations codified at 19 CFR part 351 (April 
2001).

Background

    On January 20, 1998, the Department of Commerce (the Department) 
published its final results for the administrative review of certain 
cut-to-length carbon steel plate from Belgium for the period of review 
(POR) August 1, 1995 through July 31, 1996. See Final Results of 
Antidumping Duty Administrative Review of Certain Cut-to-Length Carbon 
Steel Plate from Belgium, 63 FR 2959 (January 20, 1998) (Final 
Results). Fabrique de Fer de Charleroi S.A. (FAFER) appealed the Final 
Results to the Court of International Trade (CIT), challenging the 
Department's calculation of FAFER's U.S. selling expenses.
    During the administrative review, the Department issued its 
standard and supplemental questionnaires to FAFER instructing FAFER to 
report expenses, including indirect selling expenses related to its 
U.S. sales. In its response to the questionnaire, FAFER did not 
identify these expenses in the manner, and with the specificity, 
requested by the Department.
    FAFER first reported that there were no U.S. indirect selling 
expenses applicable to its one U.S. sale made during the POR: FAFER's 
questionnaire stated that ``There were no cost of indirect selling 
expenses for the products under investigation that FAFER have incurred 
in the United States, either directly or indirectly.'' FAFER's November 
18, 1996 Questionnaire Response, Section C, at 35. In response to a 
supplemental questionnaire, FAFER added that indirect selling expenses 
had been allocated based on information in its Section D response. See 
FAFER's January 17, 1997 Questionnaire Response, at 5. The Department 
determined that the application of facts available was warranted for 
both U.S. and home market indirect selling expenses. See Cut-to-Length 
Carbon Steel Plate From Belgium: Preliminary Results of Antidumping 
Duty Administrative Review, 62 FR 48213, 48215 (September 15, 1997) 
(Preliminary Results) (applying facts available to U.S. indirect 
selling expenses) and Final Results, 63 FR at 2963 (January 20, 1998) 
(applying facts available to home market indirect selling expenses).
    Because FAFER's U.S. sale was made through an affiliate, the 
Department classified the sale as a constructed export price (CEP) 
sale, and the price for the sale had to be adjusted pursuant to section 
772(d)(1) of the Act (19 U.S.C. 1677a(d)(1)) to account for FAFER's 
direct and indirect selling expenses. FAFER had not reported these 
expenses needed to calculate CEP, and therefore the Department had to 
resort to facts available to fill in the missing information. In the 
Final Results, the Department used the commission rate FAFER normally 
paid its U.S. affiliate as a facts available proxy for FAFER's U.S. 
indirect selling expenses. Final Results, 63 FR at 2962 (January 20, 
1998). In its opinion, the Court affirmed the Department's use of facts 
available in determining the appropriate deduction to FAFER's U.S. 
sales price. The Court, however, ordered the Department to choose 
another facts available substitute for these expenses, because the 
record indicated that the Department had determined that no commission 
was actually paid on the U.S. sale in question. The Court reasoned 
that, ``considering that there is no dispute about the inapplicability 
of FAFER's actual general commission to the sale at issue, Commerce's 
use of such commission as a proxy for FAFER's indirect selling expenses 
is unreasonable.'' See FAFER v. U.S., Slip. Op. 01-82, at 17 (CIT July 
3, 2001). The Court also noted that ``the mere possibility that FAFER's 
indirect selling expenses could be an amount near the amount to which 
Commerce arrived on the basis of facts available cannot serve as a 
valid argument in view of Commerce's admitted obligation to arrive to . 
. . the estimate most rational under the circumstances rather than the 
most similar.'' Id. at 17-18, note 4.
    Pursuant to its receipt of the ClT's remand instructions, on 
September 6, 2001, the Department released its draft results of 
redetermination to the plaintiff and defendant-intervenors for comment. 
See Certain Cut-to-Length Carbon Steel Plate from Belgium; Draft 
Results of Redetermination Pursuant to Court Remand (September 6, 2001) 
(Draft Remand Results).
    In the Draft Remand Results, we reconsidered our methodology in 
accordance with the CIT's decision. The Department determined that the 
selling, general, and administrative (SG&A) expenses detailed on the 
financial statements of FAFER's U.S. affiliate, submitted in FAFER's 
October 21, 1996 Questionnaire Response, are a reasonable estimate of 
FAFER's U.S. indirect selling expenses, as the reported expenses bear a 
rational relationship to FAFER's missing information. The Act does not 
use the term indirect selling expenses, but refers to any selling 
expenses other than direct selling expenses, commission expenses, and 
expenses paid by the seller on the buyer's behalf. See Section 772(d) 
of the Act (19 U.S.C. 1677a(d)(1)(D)). Thus, it is appropriate to 
combine all SG&A expenses for purposes of this CEP deduction. On 
September 13, 2001, the defendant-intervenors, Bethlehem Steel 
Corporation and United States Steel LLC, formerly U.S. Steel Group, a 
unit of USX Corporation, provided a timely brief commenting on the 
draft results. On September 14, 2001, plaintiff, Usinor Industeel, SA, 
(formerly FAFER), provided a timely brief commenting on the draft 
results. On September 19, 2001, the defendant-intervenors in this case 
provided a timely rebuttal brief.
    After reviewing parties comments, on October 1, 2001, the 
Department issued its final remand results. See Certain Cut-to-Length 
Carbon Steel Plate from Belgium Final Results of

[[Page 35099]]

Redetermination Pursuant to Court Remand (October 1, 2001) (Final 
Remand Results). In our Final Remand Results, we made no changes to the 
Draft Remand Results. Parties comments to our Draft Remand Results and 
the Department's responses are discussed in the Final Remand Results.
    On December 4, 2001, the CIT affirmed the Department's Final Remand 
Results. See Fabrique De Fer Charleroi S.A. v. United States, Slip Op. 
01-140 (December 4, 2001). No party appealed the CIT's decision. As 
this case is now final and conclusive, we are amending the Final 
Results of review. As a result of our recalculations, based upon the 
changes set forth above, we have revised the dumping margin for 
respondent.

Amendment to Final Results of Review

    Because no further appeals have been filed and there is now a final 
and conclusive decision in the CIT proceeding, effective as of the 
publication date of this notice, we are amending the Final Results, and 
establishing the following revised weight-averaged dumping margin:

------------------------------------------------------------------------
            Company Amended Final Results 1995-1996              Margin
------------------------------------------------------------------------
Fabrique de Fer de Charleroi S.A..............................    12.96%
------------------------------------------------------------------------

    Accordingly, the Department will instruct the Customs Service to 
assess antidumping duties on all appropriate entries of subject 
merchandise in accordance with these amended final results.

Cash Deposit Requirements

    The Department has not conducted a review of this order for any 
review period subsequent to the review period at issue (August 1, 1995 
through July 31, 1996). Therefore, the following deposit requirements 
will be effective upon publication of this notice of final results of 
administrative review for all shipments of certain cut-to-length carbon 
steel plate from Belgium entered, or withdrawn from warehouse, for 
consumption on or after the date of publication, as provided by section 
751(a)(2)(C) of the Act: (1) The cash deposit rate for FAFER will be 
the rate shown above; (2) for previously reviewed or investigated 
companies not listed above, the cash deposit rate will continue to be 
the company-specific rate established 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 the rate established in the LTFV 
investigation, which is 6.75 percent. See Amended Final Determination 
of Sales at Less Than Fair Value: Certain Cut-to- Length Carbon Steel 
Plate from Belgium, 63 FR 40698 (July 30, 1998). These deposit rates 
shall remain in effect until publication of the final results of the 
next administrative review.

    Dated: May 9, 2002
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 02-12443 Filed 5-16-02; 8:45 am]
BILLING CODE 3510-DS-S