[Federal Register Volume 69, Number 148 (Tuesday, August 3, 2004)]
[Notices]
[Pages 46501-46508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17565]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-427-818]


Notice of Final Results of Antidumping Duty Administrative 
Review: Low Enriched Uranium From France

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 January 27, 2004, the Department of Commerce (the 
Department) published the preliminary results of its first 
administrative review of the antidumping duty order on low enriched 
uranium (LEU) from France. The review covers one producer of the 
subject merchandise. The period of review (POR) is July 13, 2001, 
through January 31, 2003. Based on our analysis of comments received, 
these final results differ from the preliminary results. The final 
results are listed below in the Final Results of Review section.

DATES: Effective Date: August 3, 2004.

FOR FURTHER INFORMATION CONTACT: Carol Henninger or Constance Handley, 
at (202) 482-3003 or (202) 482-0631, respectively; AD/CVD Enforcement, 
Office 1, Group I, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street & Constitution 
Avenue, NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

    On January 27, 2004, the Department published in the Federal 
Register the preliminary results of the first administrative review of 
the antidumping duty order on LEU from France. See Notice of 
Preliminary Results of Antidumping Duty Administrative Review: Low 
Enriched Uranium from France, 69 FR 3883 (January 27, 2004) 
(Preliminary Results).
    We invited parties to comment on the Preliminary Results. On 
February 27, 2004, we received case briefs from the sole respondent, 
Eurodif S.A., Compagnie G[eacute]nerale Des Mati[eacute]res Nucleaires, 
S.A. and COGEMA, Inc. (collectively, COGEMA/Eurodif), and the 
petitioners, the United States Enrichment Corporation and USEC Inc. 
(collectively, USEC). COGEMA/Eurodif submitted its rebuttal brief on 
March 5, 2004, and USEC submitted its rebuttal brief on March 16, 2004. 
Upon request from the Department, USEC and COGEMA/Eurodif submitted 
additional comments regarding the treatment of countervailing duties on 
March 2, 2004, and March 9, 2004, respectively. A public hearing was 
held on March 17, 2004.

Scope of the Order

    The product covered by this order is all low enriched uranium 
(LEU). LEU is enriched uranium hexafluoride (UF6) with a 
U235 product assay of less than 20 percent that has not been 
converted into another chemical form, such as UO2, or 
fabricated into nuclear fuel assemblies, regardless of the means by 
which the LEU is produced (including LEU produced through the down-
blending of highly enriched uranium).
    Certain merchandise is outside the scope of this order. 
Specifically, this order does not cover enriched uranium hexafluoride 
with a U235 assay of 20 percent or greater, also known as 
highly enriched uranium. In addition, fabricated LEU is not covered by 
the scope of this order. For purposes of this order, fabricated uranium 
is defined as enriched uranium dioxide (UO2), whether or not 
contained in nuclear fuel rods or assemblies. Natural uranium 
concentrates (U3O8) with a U235 
concentration of no greater than 0.711 percent and natural uranium 
concentrates converted into uranium hexafluoride with a U235 
concentration of no greater than 0.711 percent are not covered by the 
scope of this order.
    Also excluded from this order is LEU owned by a foreign utility 
end-user and imported into the United States by or for such end-user 
solely for purposes of conversion by a U.S. fabricator into uranium 
dioxide (UO2) and/or fabrication into fuel assemblies so 
long as the uranium dioxide and/or fuel assemblies deemed to 
incorporate such imported LEU (i) remain in the possession and control 
of the U.S. fabricator, the foreign end-user, or their designed 
transporter(s) while in U.S. customs territory, and (ii) are re-
exported within eighteen (18) months of entry of the LEU for 
consumption by the end-user in a nuclear reactor outside the United 
States. Such entries must be accompanied by the certifications of the 
importer and end-user.
    The merchandise subject to this order is currently classifiable in 
the Harmonized Tariff Schedule of the United States (HTSUS) at 
subheading 2844.20.0020. Subject merchandise may also enter under 
2844.20.0030, 2844.20.0050, and 2844.40.00. Although the HTSUS 
subheadings are provided for convenience and customs purposes, the 
written description of the merchandise is dispositive.

Analysis of Comments Received

    The issues raised in the case briefs by parties to this 
administrative review are addressed in the Issues and Decision 
Memorandum to James J. Jochum, Assistant Secretary for Import 
Administration, from Gary Taverman, Acting Deputy Assistant Secretary 
for Import Administration (Decision Memorandum), which is hereby 
adopted by this notice. A list of the issues addressed in the Decision 
Memorandum is appended to this notice. The Decision Memorandum is on 
file in Room B-099 of the main Commerce building, and a public version 
of it can also be accessed directly on the Web at www.ia.ita.doc.gov. 
The paper copy and electronic version of the Decision Memorandum are 
identical in content.

Changes Since the Preliminary Results

    Based on our analysis of comments received, we have made 
adjustments to the methodology used in calculating the final dumping 
margin in this proceeding. The adjustments are discussed in detail in 
the Decision Memorandum.

Final Results of Review

    As a result of our review, we determine that the following 
weighted-average margin exists for the period of July 13, 2001, through 
January 31, 2003:

Producer--COGEMA/Eurodif
Weighted-Average Margin (Percentage)--5.43

Assessment

    The Department will determine, and U.S. Customs and Border 
Protection (CBP) shall assess, antidumping duties on all appropriate 
entries, pursuant to 19 CFR 351.212(b). The Department calculated 
importer-specific duty assessment rates on the basis of the ratio of 
the total amount of antidumping duties calculated for the examined 
sales to the total entered value of the examined sales for that 
importer. Where

[[Page 46502]]

the assessment rate is above de minimis, we will instruct CBP to assess 
duties on all entries of subject merchandise by that importer. The 
Department will issue appropriate assessment instructions directly to 
CBP within 15 days of publication of these final results of review.

Cash Deposits

    Furthermore, the following deposit requirements will be effective 
upon publication of the final results of this administrative review for 
all shipments of LEU from France entered, or withdrawn from warehouse, 
for consumption on or after the publication date of these final 
results, as provided by section 751(a) of the Tariff Act of 1930, as 
amended (the Act): (1) For companies covered by this review, the cash 
deposit rate will be the rate listed above; (2) for merchandise 
exported by producers or exporters not covered in this review but 
covered in a previous segment of this proceeding, the cash deposit rate 
will continue to be the company-specific rate published in the most 
recent final results in which that producer or exporter participated; 
(3) if the exporter is not a firm covered in this review or in any 
previous segment of this proceeding, but the producer is, the cash 
deposit rate will be that established for the producer of the 
merchandise in these final results of review or in the most recent 
final results in which that producer participated; and (4) if neither 
the exporter nor the producer is a firm covered in this review or in 
any previous segment of this proceeding, the cash deposit rate will be 
19.95 percent, the ``All Others'' rate established in the less-than-
fair-value investigation. These deposit requirements shall remain in 
effect until publication of the final results of the next 
administrative review.
    This notice also serves as a final reminder to importers of their 
responsibility under 19 CFR 351.402(f) 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 in the subsequent 
assessment of double antidumping duties.
    This notice also is the only reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305. Timely written 
notification of the 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.
    We are issuing and publishing these results and notice in 
accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: July 26, 2004.
Jeffrey May,
Acting Assistant Secretary for Import Administration.

Appendix I--Proposed Treatment of Countervailing Duties as a Cost

Background

    Section 772(c)(2)(A) of the Tariff Act of 1930, as amended, 
requires that in calculating dumping margins, the Department must 
deduct from prices in the United States any ``United States import 
duties'' or other selling expenses included in those prices.\1\ The 
issue has been raised whether this provision requires the Department to 
deduct countervailing duties (``CVDs'') imposed under section 772 of 
the Trade Act of 1974 from U.S. prices in calculating dumping 
margins.\2\
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    \1\ 19 U.S.C. 1677a(c)(2)(A). This statutory deduction existed 
prior to the passage of the Uruguay Round Agreements Act (URAA), and 
the URAA did not modify it in any respect.
    \2\ Antidumping Proceedings: Treatment of Section 201 Duties and 
Countervailing Duties, 68 FR 53,104 (Sept. 9, 2003).
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    The Department received extensive comments and has considered them 
at great length. On the basis of that consideration, it has determined 
not to deduct CVDs from U.S. prices in calculating dumping margins. The 
reasons for this decision are set forth below.

Comments in Support of Deducting Countervailing Duties

    Commenters in favor of deducting CVDs from U.S. price argue that 
the plain language of section 772(c)(2)(A) requires such deduction. 
Section 772(c)(2)(A) states that U.S. price shall be reduced by ``the 
amount, if any, included in such price, attributable to any additional 
costs, charges, or expenses, and United States import duties, which are 
incident to bringing the subject merchandise from the original place of 
shipment in the exporting country to the place of delivery in the 
United States * * * .'' These commenters contend that CVDs, in 
particular CVDs to offset domestic subsidies, are costs, charges, 
expenses or import duties incidental to bringing merchandise into the 
United States. Thus, those CVDs must be deducted.
    More specifically, these commenters argue that the statutory phrase 
``United States import duties'' encompasses CVDs. They contend that 
there is no basis for interpreting the term ``United States import 
duties'' as referring only to ``normal'' or ``regular'' duties. These 
commenters point out that the Antidumping Act of 1921 (the ``1921 
Act'') identified three types of duties: ``special dumping duties,'' 
``regular customs duties,'' and ``United States import duties.'' 
According to the commenters, ``United States import duties'' therefore 
means something different than ``normal'' or ``regular'' duties. The 
commenters assert that this term actually encompasses all duties, 
special and regular,\3\ so that the statutory direction to deduct 
``U.S. import duties'' requires the deduction of CVDs.
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    \3\ At the same time, these commenters argue that the 1921 Act's 
identification of different types of duties is ultimately irrelevant 
to the issue of deducting CVDs because the 1921 Act only referred to 
types of dumping duties, not countervailing duties.
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    Furthermore, these commenters note that section 772(c)(1)(C) 
requires the Department to increase U.S. price by the amount of any CVD 
that was imposed to offset an export subsidy. According to these 
commenters, section 772(c)(1)(C)--and the corresponding exception in 
section 772(c)(2)(A) for CVDs that fall under 772(c)(1)(C)--would have 
been superfluous if Congress had not already intended CVDs normally to 
be deducted from U.S. price. In other words, Congress set a general 
rule that CVDs are to be deducted from U.S. price, but altered this 
general rule by creating the exception for CVDs for export subsidies. 
Thus, these commenters contend that the doctrine of expressio unius est 
exclusio alterius \4\ applies. Under this doctrine, the express 
statutory exception in section 772(c)(2)(A) for CVDs for export 
subsidies indicates that Congress intended that section to encompass 
CVDs for non-export subsidies.
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    \4\ ``To say one thing is to exclude the alternative.''
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    According to these commenters, the doctrine of expressio unius also 
applies when one looks at other provisions of section 772. Section 
772(c)(2)(B) instructs the Department not to deduct from U.S. price the 
amount of any export tax, duty or other charge that is imposed by the 
exporting country to offset a countervailable subsidy. On the other 
hand, the Department will deduct the amount of any export tax, duty or 
other charge that is imposed by the exporting country for reasons other 
than to offset a countervailable subsidy. Thus, according to some 
commenters,

[[Page 46503]]

the statute's scheme for the treatment of measures to offset 
countervailable subsidies is clear. Section 772(c)(2)(B) addresses 
export taxes, duties or other charges imposed by the exporting country, 
whether to offset a countervailable subsidy or for other purposes. 
Section 772(c)(1)(C) addresses CVDs imposed to offset export subsidies. 
The only type of offset measure not expressly addressed is a CVD 
imposed to offset non-export subsidies. Thus, according to these 
commenters, it is reasonable to conclude that this type of measure is 
the type addressed in section 772(c)(2)(A) and should be deducted in 
accordance with that provision.
    The commenters supporting deduction of CVDs from U.S. price 
recognize that the Department's current practice is not to deduct. 
However, these commenters note that, under a general principle of 
administrative law, the Department may change its practice as long as 
it provides a reasoned explanation for such change.\5\ This principle 
applies even when courts have sustained the Department's current 
practice.
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    \5\ These commenters cite Rust v. Sullivan, 500 U.S. 173 (1991), 
and NTN Bearing Corp. v. United States, 903 F. Supp. 62 (Ct. Int'l 
Trade 1995).
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    Some commenters argue that deducting CVDs from U.S. price would not 
constitute a double remedy to the domestic industry, in contrast to the 
claims of the parties opposing such deductions. Several commenters 
argue that deducting CVDs is no more double-counting than deducting 
other costs and expenses incurred by a seller to the United States. 
Some commenters note that under their proposal, the Department would 
only deduct CVDs for domestic subsidies when the terms of the sale 
obligate the seller (or related importer) to pay the costs of the CVDs. 
Thus, the change in practice would not increase dumping margins to the 
extent hypothesized by the opposing parties. Moreover, there is no 
``recursiveness'' (double-counting) problem with respect to deduction 
of CVDs from U.S. price (as there might be if the Department deducted 
antidumping duties from U.S. price) because recursiveness is only a 
problem when the same determinant (such as the dumping margin) is 
present on both sides of the equation. This is not the case with the 
deduction of CVDs from U.S. price, because the ultimate antidumping 
duty rate will not affect the CVD rate.
    Some commenters also argue that deduction of CVDs from U.S. price 
is necessary in order to make the Department's practice consistent with 
Customs' practice. Customs, in determining the dutiable value of a 
good, deducts the amount of any CVDs.\6\ According to some commenters, 
the fact that the Department does not deduct CVDs from U.S. price 
results in a U.S. price that is greater than Customs' dutiable value of 
the good. When the dumping margin is applied to U.S. price, the result 
is a greater antidumping duty amount than when Customs applies that 
same margin to the smaller dutiable value. According to these 
commenters, because Customs collects antidumping duties on the basis of 
dutiable value, the Department's failure to deduct CVDs from U.S. price 
results in Customs collecting less than the full amount necessary to 
offset the margin of dumping found by the Department.
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    \6\ The relevant statute, 19 U.S.C. 1401a(b)(3)(B), directs 
Customs not to include in dutiable value the ``customs duties and 
other Federal taxes currently payable on the imported merchandise by 
reason of its importation * * *'' According to some commenters, the 
term ``customs duties'' is not defined--just as the term ``United 
States import duties'' is not defined for purposes of section 
772(c)(2)(A)--but Customs interprets it to include CVDs.
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    Several commenters claim that deducting CVDs from U.S. price would 
be consistent with the international obligations of the United States. 
These commenters note that Article VI(5) of the GATT is inapplicable 
because it only prohibits the imposition of both antidumping and 
countervailing duties for the same situation of dumping or export 
subsidization. It does not address CVDs for non-export subsidies, and 
therefore it does not prohibit the deduction of CVDs for non-export 
subsidies from U.S. price. These commenters also contend that such 
deduction would not violate the obligation of Article VI(2) of the GATT 
and Article 9.3 of the Antidumping Agreement that the amount of 
antidumping duties must not exceed the margin of dumping. According to 
these commenters, the deduction would make an adjustment for a cost of 
U.S. sales and therefore would have an equivalent effect on both the 
margin and the amount of duties. Some commenters also note that the 
laws of major U.S. trading partners authorize the deduction of CVDs 
when calculating dumping margins. Therefore, under the current 
practice, U.S. domestic industries are at a disadvantage relative to 
the industries of other countries.
    Finally, some commenters assert that a deduction for CVDs is 
necessary in order to reflect the true cost of selling in the United 
States. They note that payment of CVDs is a condition to merchandise 
entering the United States. Additionally, some commenters contend that 
certain foreign producers are simply absorbing the costs of CVDs. A 
deduction for CVDs in antidumping calculations is necessary in order to 
level the playing field when foreign producers absorb the CVD costs. 
According to these commenters, the Department should deduct CVD 
deposits, as well as final assessed CVD amounts, because deposits are 
also a cost of bringing merchandise into the United States.

Comments in Opposition To Deducting Countervailing Duties

    Many commenters argue that the term ``United States import duties'' 
in section 772(c)(2)(A) does not include countervailing duties. They 
claim that ``United States import duties'' refers only to ordinary 
duties, not to remedial duties such as CVDs. For example, one commenter 
argues that the use of the two terms ``import duties'' and 
``countervailing duties'' in section 772 indicates that Congress 
intended the terms to have different meanings.
    Some commenters point to section 777(c)(2)(B), which prohibits the 
Department from deducting any export tax, duty or other charge imposed 
by the exporting country to offset a countervailable subsidy. Because 
CVDs similarly offset countervailable subsidies, they argue that this 
shows the Congress did not intend them to be deducted from U.S. prices.
    Many commenters note that the Department's long-standing practice 
has been not to deduct CVDs from U.S. price.\7\ They note that the 
Department has interpreted ``United States import duties'' as including 
only ordinary duties and not remedial duties,\8\ and that the Court of 
International Trade (CIT) has upheld this practice.\9\
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    \7\ Some commenters suggest that the Department cannot change 
its long-standing practice absent a change in law or fact.
    \8\ Many commenters cite Certain Cold-Rolled and Corrosion-
Resistant Carbon Steel Flat Products from Korea, 62 FR 18404 (April 
15, 1997), in which the Department articulated the distinction 
between ordinary duties and antidumping or countervailing duties.
    \9\ See, e.g., A.K. Steel v. United States, 988 F. Supp. 594 
(Ct. Int'l Trade 1997); Hoogovens Staal BV v. United States, 4 F. 
Supp. 2d 1213 (Ct. Int'l Trade 1998).
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    Some commenters point out that the Department and the CIT rejected 
the domestic parties' arguments concerning the deduction of CVDs 
imposed to offset non-export subsidies in U.S. Steel Group v. United 
States, 15 F. Supp. 2d 892, 900 (1998). According to these commenters, 
the domestic parties in U.S. Steel argued that section 772(c)(2)(A) 
sets a general rule that CVDs are to be deducted from U.S.

[[Page 46504]]

price, and that the exception relating to CVDs imposed to offset export 
subsidies, contained in section 772(c)(1)(C), is evidence of this 
general rule. The CIT rejected this interpretation of the relationship 
between sections 772(c)(1)(C) and 772(c)(2)(A). Id. These commenters 
contend that the result in U.S. Steel Group represents the appropriate 
construction of the relationship between sections 772(c)(1)(C) and 
772(c)(2)(A), and that the Department should not adopt a different 
construction now. According to these commenters, the requirement in 
section 772(c)(1)(C) to add CVDs imposed to offset export subsidies 
cannot be used to interpret 772(c)(2)(A) as requiring the subtraction 
of CVDs imposed to offset non-export subsidies.
    One commenter argues that the doctrine of expressio unius est 
exclusio alterius does not support the conclusion that the requirement 
to add CVDs for export subsidies to U.S. price implies that CVDs for 
non-export price must be subtracted under section 772(c)(2)(A). This 
commenter contends that, because section 772(c) expressly provides for 
either increases or reductions to U.S. price, the statute's silence 
with respect to non-export subsidy CVDs indicates that Congress 
intended these CVDs to neither increase nor reduce U.S. price.
    Several commenters contend that Congress has been aware of the 
Department's longstanding practice of not deducting CVDs from U.S. 
prices and has acquiesced in this practice by never amending the 
statute. These commenters, argue that the Department's current practice 
is, therefore, consistent with congressional intent. One commenter also 
asserts that Congress's rejection of the treatment of antidumping 
duties as costs during passage of the URAA is further evidence of 
Congress's acceptance of the Department's current practice.\10\ 
Additionally, several commenters point out that some members of 
Congress recently have proposed legislation that would require the 
Department to deduct CVDs from U.S. price. According to these 
commenters, the necessity of new legislation demonstrates that the 
current statutory language does not permit deduction of CVDs.
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    \10\ In Certain Cut-to-Length Carbon Steel Plate from Germany, 
62 FR 18390, 18395 (April 15, 1997), the Department noted that 
``[T]he treatment of AD and CVD duties (already paid or to be 
assessed) as a cost to be deducted from the export price is an issue 
that was arduously debated during passage of the URAA and ultimately 
rejected by Congress.''
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    Many commenters argue that the deduction of CVDs from U.S. price 
would result in a double remedy to domestic industry because the CVDs 
effectively would be charged twice: once in the original proceeding 
which imposed the CVDs and once more as a factor in U.S. price, which 
will have the effect of increasing the dumping margin. These commenters 
note that the Department recognized the double-counting problem in 
Certain Cut-to-Length Carbon Steel Plate from Germany, 62 FR 18390 
(April 15, 1997). According to these commenters, deduction of CVDs 
would be inconsistent with the remedial purpose of the trade remedy 
laws and would transform remedial duties into punitive duties. The 
commenters cite to A.K. Steel v. United States, 988 F. Supp. 594 (Ct. 
Int'l Trade 1997) and U.S. Steel Group, 15 F. Supp. 2d 892, in which 
the CIT sustained the Department's decisions not to deduct remedial 
duties, partly because of the Department's concerns that the deductions 
would result in double-counting.
    Several commenters argue that deducting CVDs from U.S. price would 
be inconsistent with the international obligations of the United 
States. They cite to Article VI(5) of the GATT, which prohibits 
countries from deducting CVDs imposed to offset export subsidization in 
a dumping calculation. They also cite Article 19.4 of the Agreement on 
Subsidies and Countervailing Measures, which provides that no CVD shall 
be levied in excess of the amount of the subsidy found to exist. These 
commenters contend that deducting a CVD in an antidumping proceeding 
will have the practical effect of doubling the amount of the CVD, in 
contravention of Article 19.4. Commenters also argue that deduction of 
CVDs would create an artificially low export price and consequently an 
inflated dumping margin, in contravention of Article 9.3 of the 
Antidumping Agreement. Furthermore, some commenters argue that the fact 
that the laws of some U.S. trading partners may provide for the 
deduction of CVDs is irrelevant to the question of whether the United 
States should adopt this practice. Other commenters assert that a 
change in the Department's practice would create a domino effect that 
would have a negative impact on world trade.
    Finally, one commenter argues that there would be practical 
difficulties to deducting CVDs from U.S. price. According to this 
commenter, the retrospective duty assessment system of the United 
States would make timely and consistent adjustments for CVDs 
impossible. This commenter contends that the Department, if it chooses 
to deduct CVDs, would only be able to deduct final, assessed CVDs. 
However, CVDs are not final until after all appeals are complete. 
Consequently, when there are parallel antidumping and countervailing 
duty proceedings for the same subject merchandise, the Department would 
not be able to make adjustments to the dumping margin until the appeals 
of the CVD proceeding are complete. Such a delay would push the final 
antidumping determination well past the statutory deadlines, according 
to this commenter.

Discussion

    The Department, for the several reasons explained below, has 
determined to continue its well-established practice of not deducting 
CVDs from U.S. price in calculating dumping margins. The Department's 
view remains that CVDs are neither ``United States import duties'' nor 
selling expenses within the meaning of section 772(c)(2)(A) of the Act, 
and therefore should not be deducted from U.S. price.
    The Statute and Legislative History. Section 772(c)(2)(A) of the 
Act requires the Department to reduce export price and constructed 
export price by:

 The amount, if any, included in such price, attributable to any 
additional costs, charges, or expenses and United States import 
duties, which are incident to bringing the subject merchandise from 
the original place of shipment in the exporting country to the place 
of delivery in the United States.\11\

    \11\ 19 U.S.C. 1677a(c)(2)(A) (emphasis added).
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    The Meaning of ``United States Import Duties''. The term ``United 
States import duties'' originated in the 1921 Act.\12\ The term was not 
defined in 1921 or in any subsequent AD or CVD legislation, and the CIT 
has found its meaning to be ``unclear.'' \13\ In this situation, the 
Department's interpretation of the term is entitled to substantial 
deference.\14\
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    \12\ See, The 1921 Act, 19 U.S.C. 161(a) (repealed, 1979); and 
Nichimen Am., Inc., v. United States, 938 F.2d 1286, 1289 (Fed. Cir. 
1991).
    \13\ See, AK Steel v. United States, 988 F. Supp. 594, 607 (Ct. 
Int'l Trade 1997); and PQ Corp. v. United States, 652 F. Supp. 724, 
736 (Ct. Int'l Trade 1987).
    \14\ See, Chevron U.S.A., Inc. v. Natural Res. Def. Council, 
Inc., 467 U.S. 837, 844 (1984).
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    The legislative history of the 1921 Act indicates that AD duties, 
at least, are not the same as ordinary Customs duties. The Senate 
Report refers to AD duties as ``special dumping dut[ies]'' and refers 
to ordinary Customs duties as ``United States import duties.'' \15\ 
Section 211 of the 1921 Act provides that, for the

[[Page 46505]]

limited purpose of duty drawback, ``the special dumping dut[ies] * * * 
shall be treated in all respects as regular customs duties.'' \16\ If 
``special dumping duties'' really were considered to be just one type 
of ``United States import duty,'' this special provision would have 
served no purpose.
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    \15\ See, S. Rep. No. 67-16, at 4 (1921), discussed in Certain 
Cold-Rolled and Corrosion-Resistant Carbon Steel Flat Products from 
Korea, 62 FR 18,404, 18,421 (Apr. 15, 1997).
    \16\ The 1921 Act, 42 Stat. 15. See, S. Rep. No. 67-16, at 4 
(1921).
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    That ``special dumping duties'' were considered to be distinct from 
normal Customs duties is also indicated by the fact that section 202(a) 
of the 1921 Act provides that ``special dumping duties'' may be applied 
to ``duty-free'' merchandise.\17\ In this context, ``duty-free'' must 
mean ``free from normal Customs duties.'' If ``duty-free'' had meant 
``free from any import duties,'' that would have included antidumping 
duties, so that special dumping duties would have been applied to 
merchandise exempt from special dumping duties. Plainly, ``duty-free'' 
was understood to mean ``free from normal Customs duties.''
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    \17\ The 1921 Act, 42 Stat. 11.
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    A number of commenters argue that, while Congress did distinguish 
``special dumping duties'' from ``regular customs duties'' in section 
211 of the 1921 Act, it used the different term ``United States import 
duties'' in sections 203 and 204 (which were the precursors to section 
772). Thus, ``United States import duties'' must mean something other 
than either ``special dumping duties'' or ``regular customs duties.'' 
Logically, ``United States import duties'' must be a broader term that 
encompasses normal Customs duties and CVDs. The problem with this 
argument is that if ``United States import duties'' includes CVDs, then 
it logically must include all CVDs and also AD duties, thus requiring 
their deduction from U.S. prices. With respect to CVDs to offset export 
subsidies, this flatly contradicts the statute. With respect to AD 
duties, this would amount to deducting dumping margins from initial 
U.S. prices in calculating dumping margins.
    Another provision of the statute that provides some context is 
section 779, which provides that, ``[f]or purposes of any law relating 
to the drawback of customs duties, [CVDs and AD duties] imposed by this 
subtitle shall not be treated as being regular customs duties.'' \18\ 
While this is restricted in application to duty drawback, it certainly 
suggests that AD duties and CVDs are distinguishable from regular 
Customs duties.\19\
---------------------------------------------------------------------------

    \18\ 19 U.S.C. 1677h.
    \19\ Of course, it can also be argued that no exemption would be 
necessary if the general rule were not that AD duties and CVDs are 
generally to be treated as regular Customs duties.
---------------------------------------------------------------------------

    The Meaning of ``Any Costs, Charges or Expenses'' of Importation. A 
number of commenters argue that CVDs to offset domestic subsidies must 
be deducted as included in the term ``any costs, charges, or expenses'' 
of bringing the merchandise into the United States, the better argument 
takes account of the fact that the statute refers to any additional 
``costs, charges, expenses and United States import duties * * *.'' 
These comments argue that this language indicates that import duties 
are considered to be independent of other costs, charges, and expenses. 
We disagree. While CVDs are a special type of import duty, they are 
nevertheless a species of import duty, and are thus covered, if at all, 
by the phrase ``United States import duties.'' Thus, the Department has 
interpreted the statute as providing for the addition to initial U.S. 
prices of any additional costs, charges, or expenses and normal United 
States import duties (but not other import duties).
    The Logic and Context of the 1979 Amendments. With respect to CVDs 
to offset export subsidies, the 1979 amendments to the statute provide 
a straightforward response to the argument that they should be deducted 
from initial U.S. prices in calculating dumping margins---they require 
that CVDs to offset export subsidies be added to initial U.S. prices. 
We do not interpret the statute to require CVDs to offset export 
subsidies first to be added to initial U.S. prices and then to permit 
this addition to be negated by their subsequent subtraction.
    Domestic subsidies present a closer question, as the statute does 
not speak directly to them. The fact that the statute addresses CVDs to 
offset export subsidies directly, however, and then remains silent 
about the plainly related issue of CVDs to offset domestic subsidies, 
is not complete silence---it implies that no adjustment is appropriate. 
There is no reason why Congress would have provided for the addition of 
export subsidy CVDs, but not considered the plainly related issue of 
domestic subsidy CVDs.
    Certain domestic parties have argued that the provision for the 
addition to U.S. prices of CVDs to offset export subsidies, coupled 
with silence concerning the treatment of CVDs to offset domestic 
subsidies, indicates that CVDs to offset domestic subsidies should be 
subtracted from U.S. prices. This logic is flawed. The statute does not 
require the ``non-deduction'' from initial U.S. prices of CVDs to 
offset export subsidies---it requires their addition. There are not 
one, but two, alternatives to ``non-addition''---subtraction and no 
adjustment. As discussed below with respect to the double counting 
issue, the logical complement to adding CVDs to offset export subsidies 
to U.S. price is to make no adjustment with respect to CVDs to offset 
domestic subsidies.\20\
---------------------------------------------------------------------------

    \20\ As explained above, the addition of export subsidy CVDs and 
no adjustment for domestic subsidy CVDs is consistent with a 
presumption that subsidies are passed through into initial prices, 
but that CVDs are not. There is no consistent set of presumptions 
about these matters that can be reconciled with the addition to 
initial U.S. prices of export subsidy CVDs and the subtraction of 
domestic subsidy CVDs.
---------------------------------------------------------------------------

    Some domestic commenters argue that the 1979 amendments indicate 
that CVDs generally must be deducted from initial prices in the United 
States. These commenters focus on the fact that, in addition to 
requiring the addition of export subsidy CVDs to the initial U.S. price 
under (current) (c)(1)(C), the 1979 Act also amended section (c)(2)(A), 
specifically excluding export subsidies from the normal deductions from 
initial U.S. prices.\21\ The argument is that this additional change 
would have been pointless, unless CVDs otherwise were to be deducted 
from U.S. prices.
---------------------------------------------------------------------------

    \21\ The 1979 amendments changed the statute to read as follows:
---------------------------------------------------------------------------

    (d) * * * The purchase price and the exporter's sales price shall 
be adjusted by being
    (1) increased by--
* * * * *
    (D) the amount of any countervailing duty imposed on the 
merchandise under subtitle A of this title or section 303 of this Act 
to offset an export subsidy, and
    (2) reduced by--
    (A) except as provided in paragraph (1)(D), the amount, if any, 
included in such price, attributable to any additional costs, charges, 
and expenses, and United States import duties, incident to bringing the 
merchandise from the place of shipment in the country of exportation to 
the place of delivery in the United States * * *

Pub. L. 96-39, 93 Stat. 181-82 (1979).
    This argument is overstated. First, the second of these two 
amendments to the statute simply states that expenses are to be 
deducted from the price in the United States ``except as provided in 
[the paragraph providing for the addition of export subsidies].'' While 
this could be interpreted to mean that CVDs normally are deducted, it 
also could be interpreted as a simple safeguard to prevent any possible 
implication that the same expense should be both added to and 
subtracted

[[Page 46506]]

from prices in the United States. The House Report is silent on the 
issue,\22\ but the Senate Report supports this second interpretation:
---------------------------------------------------------------------------

    \22\ See discussion of United States Price at H. R. Rep. No. 96-
317, at 77 (1979).

* * * the addition for countervailing duties assessed on the same 
merchandise to offset subsidies is clarified to apply only to 
subsidies which are classified as export subsidies.
* * * * *
The purpose of the amendment regarding additions to purchase price 
and exporter's sales price with respect to countervailing duties 
also being assessed because of an export subsidy is designed to 
clarify that such adjustment is made only to the extent that the 
exported merchandise * * * benefits from a particular subsidy. The 
principal [sic] behind adjustments to the price paid in these 
instances is to achieve comparability between the price[s] which are 
being compared. Where the situation is the same * * * [where the 
subsidy benefits all merchandise sold in both markets] then no 
adjustment is appropriate.\23\
---------------------------------------------------------------------------

    \23\ S. Rep. No. 96-249 at 93 (1979). (Emphasis added).

Thus, not only does the Senate Report not support the interpretation 
that CVDs should be deducted from U.S. price, it states that ``no 
adjustment'' is appropriate with respect to domestic subsidy CVDs.\24\
---------------------------------------------------------------------------

    \24\ The 1979 Act Statement of Administrative Action, at 412, 
states that:
    A new adjustment to ``purchase price'' and ``exporter's sales 
price'' is intended to reflect provisions of Article VI of the 
General Agreement on Tariffs and Trade, by mandating the addition to 
``purchase price'' or ``exporter's sales price'' of any 
countervailing duty actually imposed to offset an export subsidy 
paid on the same merchandise. * * * The GATT prohibits the 
assessment of both antidumping and countervailing duties to 
compensate for the same cause of unfairly low priced imports, 
whether by dumping or as result of an export subsidy.
---------------------------------------------------------------------------

    Double Counting. The 1979 amendments also demonstrate Congress' 
intention to avoid double-counting of CVDs and AD duties. Section 
772(c)(1)(c) of the Act expressly provides that where an export subsidy 
has been provided, the Department must increase the U.S. price by ``the 
amount of any countervailing duty imposed on the subject merchandise * 
* * to offset an export subsidy.'' 19 U.S.C. section 1677a(c)(1)(C). As 
the Department has explained, the reason for this is to prevent double-
counting:

    Domestic subsidies presumably lower the price of the subject 
merchandise both in the home and the U.S. markets, and therefore 
have no effect on the measurement of any dumping that might also 
occur. Export subsidies, by contrast, benefit only exported 
merchandise. Accordingly, an export subsidy brings about a lower 
U.S. price, which could be ascribed to either dumping or export 
subsidization, as well as the potential for double remedies. 
Imposing both an export-subsidy CVD and an AD duty, calculated with 
no adjustment for that CVD, would impose a double remedy 
specifically prohibited by Article VI.5 of the GATT. Thus, the only 
reasonable explanation for Congress' decision to provide for the 
{addition to{time}  U.S. price of export-subsidy CVDs is protection 
against double remedies. Cold-Rolled Corrosion Resistant Carbon 
Steel Flat Products from Korea, 62 FR at 18,422

    The treatment of CVDs that arise out domestic subsidies contrasts 
with the statutory treatment of CVDs that relate to export subsidies. 
The reason for the difference in treatment is that export subsidies are 
assumed to increase dumping margins by lowering the export price, but 
not the domestic price in the exporting country. Consequently, 
collecting both a CVD on an export subsidy and also the increase in the 
dumping margin resulting from that subsidy would constitute a double 
remedy for the export subsidy. Adding the CVD to the initial U.S. price 
lowers the margin by the amount the subsidy is presumed to have 
increased it, thereby preventing a double-remedy. On the other hand, 
domestic subsidies are assumed not to affect dumping margins, because 
they lower prices in both the U.S. market and the domestic market of 
the exporting country equally. As a result, there is no need for an 
adjustment to prevent a double remedy. Thus, in the most general terms, 
the statute stands for the proposition that dumping margins should not 
be calculated so as to double-collect CVDs.
    The Courts have specifically upheld this rationale for not 
deducting CVDs from U.S. prices in calculating dumping margins. As the 
court explained in U.S. Steel Group v. United States:

    Logically, the deduction of countervailing duty, whether export 
or non-export, from the U.S. price used to calculate the antidumping 
margin, would result in a double remedy for the domestic industry. 
Commerce has already corrected for subsidies on the subject 
merchandise in the countervailing duty order, thereby granting the 
domestic industry a remedy. To deduct such countervailing duties 
from U.S. price would create a greater dumping margin, in effect a 
second remedy for the domestic industry. U.S. Steel Group v. United 
States, 15 F.Supp. 892, 900 (Ct. Int'l Trade 1998).

    Certain commenters have argued that an analysis of the statute must 
take into account section 772(c)(2)(B), which provides that any export 
tax specifically imposed to offset a countervailable subsidy may not be 
deducted from the initial U.S. price.\25\ A number of commenters have 
pointed out that, because export taxes on subsidies are exempt from the 
normal requirement to deduct the costs of selling in the United States 
from initial U.S. prices, it would be consistent to give the same 
exemption to import taxes (CVDs) on those same subsidies. We agree that 
not deducting CVDs from U.S. prices is consistent with section 
772(c)(2)(B).
---------------------------------------------------------------------------

    \25\ 19 U.S.C. 1677a(c)(2)(B) directs the Department to reduce 
the export price or constructed export price by:
    the amount, if included in such price, of any export tax, duty, 
or other charge imposed by the exporting country on the exportation 
of the subject merchandise to the United States, other than an 
export tax, duty, or other charge described in section 1677(6) (C). 
[Section 771(6) (C) of the Act].

Section 771(6)(C) lists ``export taxes, duties, or other charges levied 
on the export of merchandise to the United States specifically intended 
to offset the countervailable subsidy received.''
    The Department's Practice & Relevant Court Decisions. In the 23 
years that the Department has administered the AD law, it has never 
deducted AD duties or CVDs from initial U.S. prices in calculating 
dumping margins.\26\ Nor, apparently, did Treasury ever make such a 
deduction in the 58 years that it administered the law (from 1921--
1979). As the Department has explained:
---------------------------------------------------------------------------

    \26\ See, e.g., Certain Corrosion-Resistant Carbon Steel Flat 
Products from Korea; Final Results of Antidumping Duty 
Administrative Review, 61 FR 18,547 18,564 (Apr. 26, 1996); Certain 
Cold-Rolled Carbon Steel Flat Products from the Netherlands; Final 
Results of Antidumping Duty Administrative Review, 61 FR 48, 465, 
48,469 (Sept. 13, 1996); Certain Cut-To-Length Carbon Steel Plate 
from Germany; Final Results of Antidumping Duty Administrative 
Review, 62 FR 18,390, 18,395 (Apr. 15, 1997); Extruded Rubber Thread 
from Malaysia; Final Results of Antidumping Duty Administrative 
Review, 64 FR 12,967, 12,973 (March 16, 1999); and Certain Welded 
Carbon Steel Pipes and Tubes from Thailand, 66 FR 53,388 (Oct. 22, 
2001) and accompanying Decision Memorandum at Comment 1. See Also, 
Antidumping Duties; Countervailing Duties: Proposed Rule, 61 FR 
7,308, 7,332 (Feb. 27, 1996).

    It is the Department's longstanding position that AD and CVD 
duties are not a cost within the meaning of section 772(d). AD and 
CVD duties are unique. Unlike normal duties which are an assessment 
against value, AD and CVD duties derive from the margin of dumping 
or rate of subsidization found. See Federal Mogul, supra 813 F.Supp. 
at 872 (deposits of antidumping duties should not be deducted from 
USP because such deposits are not analogous to deposits of ``normal 
import duties''). Final Results of Antidumping Administrative 
---------------------------------------------------------------------------
Review: Plate from Germany, 62 FR 18,390, 18,395 (Apr. 15, 1997).

    The Department's interpretation of the statute has been 
consistently affirmed by the U.S. courts. The CIT has upheld the 
Department's interpretation of the meaning of section 772(c)(2)(A) of 
the Act on five occasions, and the court has directly addressed the 
issue of whether CVDs should be deducted from initial

[[Page 46507]]

prices in the United States in two decisions.\27\ In each case, the 
Court affirmed the Department's determination not to make the 
deduction, following the rationale of the earlier decisions upholding 
the Department's determination not to deduct AD duties from initial 
U.S. prices.\28\
---------------------------------------------------------------------------

    \27\ See, PQ Corp. v. United States, 652 F. Supp. 724, 737 (Ct. 
Int'l Trade 1987) (Commerce need not deduct estimated AD deposits 
from the initial price in the United States); Federal-Mogul Corp. v. 
United States, 813 F. Supp. 856, 872 (Ct. Int'l Trade 1993) 
(Commerce need not deduct estimated AD deposits from the initial 
price in the United States); AK Steel Corp. v. United States, 988 F. 
Supp. 594 (Ct. Int'l Trade 1997) (actual antidumping and 
countervailing duties need not be deducted from the initial price in 
the United States); Hoogovens Staal v. United States, 4 F. Supp.2d 
1213, 1220 (Ct. Int'l Trade 1998) (Commerce need not deduct AD 
duties from the initial price in the United States as either U.S. 
import duties or as costs); Bethlehem Steel v. United States, 27 F. 
Supp.2d 201, 208 (Ct. Int'l Trade 1998) (Commerce need not deduct AD 
duties from the initial price in the United States as either U.S. 
import duties or as costs); U.S. Steel Group v. United States, 15 F. 
Supp. 2d 892, 898-900 (Ct. Int'l Trade 1998) (Commerce need not 
deduct either AD nor CVDs from the starting price in the United 
States in calculating AD duties). But see, C.J. Tower & Sons v. 
United States, 71 F. 2d 438 (CCPA 1934), in which the Court of 
Customs and Patent Appeals stated in another context that special 
dumping duties were not penalties, but duties for ``all purposes.''
    \28\ U.S. Steel, at 899 (Ct. Int'l Trade 1998); AK Steel, at 
607-608.
---------------------------------------------------------------------------

    Throughout this time, Congress has been aware of the Department's 
firmly-established practice and of the court decisions affirming that 
practice, and never sought to change the statute in this regard.\29\ 
This creates a strong presumption that the Department's interpretation 
of the statute is consistent with Congressional intent.\30\
---------------------------------------------------------------------------

    \29\ See, H.R. Rep. No. 103-826(I), at 60-61 (1994); S. Rep. No. 
96-249, at 94 (1979).
    \30\ See, FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 
132 (2000); United States v. Hermanos, 209 U.S. 337, 339 (1908); 
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 
381-82 (1982).
---------------------------------------------------------------------------

    Certain commenters have pointed to two Commerce administrative 
determinations, in Fuel Ethanol from Brazil and Softwood Lumber from 
Canada, in support of their contention that the Department has 
previously determined to deduct duties from U.S. price. However, the 
Department's determinations in these two cases are inapposite. First, 
the Department's 1986 determination in Fuel Ethanol from Brazil is not 
relevant to the issue of the treatment of CVDs. In that determination, 
the Department deducted special tariffs on imported fuel ethanol from 
the initial U.S. prices.\31\ The tariffs in question were not CVDs. In 
fact, they were not remedial duties under any trade remedy law. Rather, 
they were tariffs added to the HTS by Congress to offset a tax subsidy 
that producers received for fuel-grade ethanol. A contemporary 
investigation by the International Trade Commission did not find injury 
to a U.S. industry.\32\ Consequently, Fuel Ethanol from Brazil is not 
relevant to the issue of whether CVDs should be subtracted from U.S. 
prices in calculating dumping margins.
---------------------------------------------------------------------------

    \31\ Fuel Ethanol from Brazil; Final Determination of Sales at 
Less Than Fair Value, 51 FR 5572 (Feb. 14, 1986).
    \32\ Certain Ethyl Alcohol from Brazil, Inv. No. 731-TA-248, 
USITC Pub. 1818 (Final)(March 1986).
---------------------------------------------------------------------------

    Similarly, the Department's 2002 determination in Softwood Lumber 
from Canada is not relevant to the issue of the treatment of CVDs.\33\ 
That proceeding involved imports of lumber that had been subject to a 
quota-based fee under the U.S.--Canada Softwood Lumber Agreement. The 
export fees applied only to exports of lumber from Canada above 14.7 
billion board feet. The Department deducted these fees from initial 
U.S. prices, noting that they did not qualify for the exemption from 
such deductions for export payments ``specifically intended to offset 
countervailable subsidies.'' \34\ Because that determination involved 
export fees rather than import duties, and similarly did not address 
the purpose of CVDs or account for the legislative history discussed 
above, it does not apply to the issue of whether CVDs should be 
deducted.
---------------------------------------------------------------------------

    \33\ Certain Softwood Lumber Products from Canada; Notice of 
Final Determination of Sales at Less Than Fair Value, 67 FR 15,539 
(Apr. 2, 2002), and accompanying decision memorandum, at Comment 
Nine.
    \34\ Id.
---------------------------------------------------------------------------

    Customs' Practice. Certain commenters argue that CVDs must be 
deducted from initial U.S. prices because Customs deducts them from the 
price at which such merchandise is exported in calculating export value 
under section 302 of the Emergency Tariff Act, which contains identical 
language to section 772 of the AD law. The argument is that Customs 
must deduct CVDs in calculating entered value in order to avoid 
assessing Customs duties on CVDs, which would arguably be double 
counting. Accordingly, the identical language in the AD law must also 
be interpreted to require the deduction of CVDs from initial U.S. 
prices in calculating EP or CEP.
    Any differences between the Department's and Customs' approach to 
valuation are not germane to the Department's interpretation of the 
statute. Customs law and the AD/CVD laws are distinctly different 
statutes and are applied for distinctly different purposes. The Courts 
have often countenanced different approaches and interpretations by the 
two agencies in interpreting the respective laws which they 
administer.\35\ Thus, the answer is that even identical language in two 
statutes must be interpreted in context, and that export value was 
never intended to be exactly the same thing as EP or CEP.
---------------------------------------------------------------------------

    \35\ See, Diversified Prod. v. United States, 572 F. Supp. 883 
(Ct. Int'l Trade 1983); Torrington v. United States, 745 F. Supp. 
718, 722 (Ct. Int'l Trade 1990), aff'd, 938 F.2d 1276 (Fed. Cir. 
1991) (Commerce not bound by customs classifications); Koyo Seiko v. 
United States, 955 F. Supp. 1532 (Ct. Int'l Trade 1997) (Customs has 
a ministerial role in antidumping duty law and * * *. it is solely 
Commerce's domain to define the class or kind of merchandise.) 
Roquette Freres v. United States, 583 F. Supp. 599, 605 (Ct. Int'l 
Trade 1984) (Commerce not bound by Customs interpretation of term 
``class or kind'').
---------------------------------------------------------------------------

    Fair Pricing. Some domestic parties argue that, if CVDs are not 
passed through into initial U.S. prices, the foreign producers defeat 
the purpose of the AD law to ``level the playing field'' in the U.S. 
market. Thus, they argue, CVDs must be deducted from the initial U.S. 
price. to create a fair comparison. This argument takes what may well 
have been an implicit assumption of Congress in creating the AD and CVD 
laws (although apparently not the 1979 amendments)--that AD duties and 
CVDs would raise prices in the U.S. market--and turns it into a 
requirement to be enforced by the AD law. The AD law itself, however, 
contains no such requirement. It simply directs the Department to 
determine the export price and the normal value and to assess AD duties 
in the amount of the difference. In other words, the AD law does not 
require that merchandise subject to AD duties or CVDs be sold at higher 
prices in the U.S. market if the producer pays the duties.
    The only provision of the statute that even refers to the potential 
effect of duties on prices in the U.S. market is in the statute's 
sunset provision, introduced in the Uruguay Round Agreements Act. This 
directs the Department to determine in CEP situations (in the second 
and fourth administrative reviews only) whether the foreign producer or 
exporter ``absorbed'' the AD duties.\36\ There is no comparable 
provision with respect to CVDs. A finding that absorption occurred does 
not affect the AD margin, but only the determination of whether dumping 
would be likely to continue or

[[Page 46508]]

recur if the order were revoked.\37\ The SAA relating to this very 
provision states that it is not intended to provide for the treatment 
of AD duties as a cost in AD calculations.\38\
---------------------------------------------------------------------------

    \36\ Section 751(a)(4) of the Act, 19 U.S.C. 1675(a)(4).
    \37\ The Department finds that the duties have been absorbed if 
the seller pays them, which is consistent with the approach to CVDs 
taken the 1979 amendments to the AD law. See, e.g., Stainless Steel 
Wire Rod from the Republic of Korea; Preliminary Results of 
Antidumping Duty Administrative Review, 68 FR 57,879, 57,880 (Oct. 
7, 2003); Freshwater Crawfish Tail Meat from the People's Republic 
of China; Notice of Final Results of Antidumping Duty Administrative 
Review, 68 FR 19,504, 19,505 (Apr. 21, 2003).
    \38\ Uruguay Round Agreements Act, Statement of Administrative 
Action at 885.
---------------------------------------------------------------------------

    A related argument is that producers must be forced to cover their 
full costs of production in the United States, and that the extent to 
which that cost of production has been lowered by subsidies must be 
accounted for by deducting CVDs on those subsidies from initial U.S. 
prices. This argument is mistaken--the AD law does not direct the 
Department to add foreign government subsidies to foreign producers' 
costs of production. Presumably, Congress did not intend for the 
Department to effectively accomplish the same thing by subtracting CVDs 
from initial U.S. prices.
    Conclusion. The Department will continue not to deduct CVDs from 
U.S. prices in calculating dumping margins because CVDs are not 
``United States import duties'' within the meaning of the statute, and 
to make such a deduction effectively would collect the CVDs a second 
time. Accordingly, to the extent that CVDs may reduce dumping margins, 
this is not a distortion of any margin to be eliminated, but a 
legitimate reduction in the level of dumping.

Appendix II--Issues in Decision Memorandum

Comment 1: Application of the Major Inputs Rule to Eurodif's 
Purchases of Electricity
Comment 2: General and Administrative (G&A) expenses
Comment 3: Financial Expenses
Comment 4: Constructed Value (CV) Profit
Comment 5: Goodwill Expenses
Comment 6: Tails Defluorination and Plant Decommissioning
Comment 7: Attribution of Subject Merchandise
Comment 8: Circumstance of Sale (COS) Adjustment
Comment 9: Constructed Export Price (CEP) Offset
Comment 10: Indirect Selling Expenses
Comment 11: CV Selling Expenses
Comment 12: Treatment of Countervailing Duties

[FR Doc. 04-17565 Filed 8-2-04; 8:45 am]
BILLING CODE 3510-DS-P