[Federal Register: January 19, 1996 (Volume 61, Number 13)]
[Notices]
[Page 1324-1328]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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DEPARTMENT OF COMMERCE
[A-421-701]
Brass Sheet and Strip From The Netherlands; 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 December 28, 1994, the Department of Commerce (the
Department) published the preliminary results of its 1990-91
administrative review of the antidumping duty order on brass sheet and
strip from the Netherlands. The review covers exports of this
merchandise to the United States by one manufacturer/exporter,
Outokumpu Copper Rolled Products AB (OBV), during the period August 1,
1990 through July 31, 1991. The review indicates the existence of
dumping margins for this period.
We gave interested parties an opportunity to comment on our
preliminary results. Based on our analysis of the comments received and
as a result of a change in the treatment of home market consumption
taxes, we have adjusted OBV's margin for these final results.
EFFECTIVE DATE: January 19, 1996.
FOR FURTHER INFORMATION CONTACT: Thomas Killiam or John Kugelman,
Office of Antidumping Compliance, Import Administration, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
5253.
SUPPLEMENTARY INFORMATION:
Background
On December 28, 1994(59 FR 66892), the Department published in the
Federal Register the preliminary results of its 1990-91 administrative
review of the antidumping duty order on brass sheet and strip from the
Netherlands (53 FR 30455, August 12, 1988).
Applicable Statute and Regulations
The Department has completed this administrative review in
accordance with section 751 of the Tariff Act of 1930, as amended (the
Act). Unless otherwise indicated, all citations to the statute and to
the Department's regulations are in reference to the provisions as they
existed on December 31, 1994.
Scope of the Review
Imports covered by this review are sales or entries of brass sheet
and strip, other than leaded and tinned brass sheet and strip, from the
Netherlands. The chemical composition of the products under review is
currently defined in the Copper Development Association (C.D.A.) 200
Series or the Unified Numbering System (U.N.S.) C20000 series. This
review does not cover products the chemical compositions of which are
defined by other C.D.A. or U.N.S. series. The merchandise is currently
classified under Harmonized Tariff Schedule (HTS) item numbers
7409.21.00 and 7409.29.20. The HTS item numbers are provided for
convenience and Customs purposes. The written description remains
dispositive.
The review period is August 1, 1990 through July 31, 1991. The
review involves one manufacturer/exporter, OBV.
Analysis of Comments Received
We gave interested parties an opportunity to comment on the
preliminary results. At the request of OBV, we held a hearing on
February 10, 1995. We received case and rebuttal briefs from OBV and
from the petitioners, Hussey Copper, Ltd., The Miller Company, Olin
Corporation, Revere Copper Products, Inc., International Association of
Machinists and Aerospace Workers, the International Union, Allied
Industrial Workers of America (AFL-CIO), Mechanics Educational Society
of America (Local 56), and the United Steelworkers of America (AFL-CIO/
CLC).
Comment 1: The respondent alleges that in the preliminary results
of review the Department incorrectly treated certain payments made by
OBV to its U.S. affiliate, Outokumpu Copper Inc. (OCUSA), as
commissions and adjusted for them as direct selling expenses. The
respondent explains that its purchase price data list reports three
different types of transactions in the commissions column, and that
only one of the three types of transactions thus reported should be
adjusted for as a direct selling expense.
The only true commissions on U.S. sales, according to the
respondent, are those which were paid to Global Metals Corporation
(Global), an independent agent. These commissions, the respondent
explains, are all labeled ``U'' (unrelated) on the sales list.
The second type of transaction reflected in the commissions field,
the respondent states, is an intra-corporate transfer of funds from the
parent to the U.S. affiliate, and can be identified by both the label
``R'' (related party) and by the fixed per-pound amount of the charge
involved.
In support of its position concerning this second type of payment,
the respondent cites the Department's practice as expressed in Color
Picture Tubes from Korea (56 FR 5385, 5386, February 11, 1991) (Color
Picture Tubes), where the Department stated: ``[I]n general the
Department regards payments to related parties as intracompany
transfers of funds . . . .'' The respondent also cites Television
Receivers, Monochrome and Color, from Japan, 53 FR 4050, 4053 (February
11, 1988), in which the Department stated: ``We consider payments to
related parties to be mere intra-corporate transfers of funds rather
than commissions.'' The respondent also cites similar language in
Porcelain-on-Steel Cooking Ware from Mexico, 51 FR 36435 (October 10,
1986).
The respondent further argues that the Department is permitted to
make an adjustment for related-party commissions only if (1) the record
demonstrates that the commissions are directly related to the sales
subject to review and (2) the payments reflect an arm's length rate. As
authority for this point the respondent cites Outokumpu Copper Rolled
Products AB v. United States, 850 F. Supp. 16 (CIT 1994) (Outokumpu/
Sweden), LMI Industriale S.p.A. v. United States, 912 F.2d 455 (Fed.
Cir. 1990)(LMI), Color Picture Tubes, and Brass Sheet & Strip from the
Netherlands; Final Results of Antidumping Administrative Reviews, 57 FR
9534 (March 19, 1992). With regard to the payments at issue, the
[[Page 1325]]
respondent denies that the payments in question are directly related to
sales and argues that in any case the payments were not arm's length.
The third type of payment reported in the commissions field, the
respondent explains, is labeled ``R'', but can be distinguished from
the second type of payment because it reflected varying percentages of
the sales price, unlike the one fixed rate which applied to the second
type of payment. This third type of payment, the respondent states, was
associated with closed-consignment sales and consisted of ``the
difference between the transfer price and the price charged by OCUSA to
the customer''. The respondent further clarifies this third type of
payment:
Unlike other purchase price sales it processed, OCUSA was not paid
a commission on any of the closed consignment purchase price sales
handled by OCUSA. * * * OCUSA received the difference, if any, between
the transfer price it paid to OBV and the amount OCUSA invoiced to the
customer. * * * the amounts reported as ``commissions'' in this
instance were paid to OCUSA by the customer as a mark-up, not by OBV to
OCUSA.
The respondent argues that it only reported the amounts of the
third type of payment in response to the Department's February 12, 1992
supplemental questionnaire, which noted that certain purchase price
sales showed no commissions. In reporting these amounts, the respondent
``placed the Department on notice that these amounts, in fact, were not
commissions.''
The respondent cites the Department's treatment of the same type of
payments as indirect expenses in the two preceding reviews, and cites
the Department's treatment of the same kind of payments as indirect
expenses in the 1988-1990 reviews of the antidumping duty order on
brass sheet and strip from Sweden. In the latter case, the respondent
mentions, the Court of International Trade (CIT), in Outokumpu/Sweden,
upheld the Department's treatment of the intracorporate transfers in
question as indirect selling expenses.
The petitioners argue that the Department correctly treated all
three types of payments as commissions. They contend that OBV
understated the first type of payments, commission payments to Global,
since OBV reported amounts that were less than the rate in the contract
between the two parties.
As for the second type of payment discussed above, the petitioners
point out that in the most recently completed review of brass sheet and
strip from Sweden (60 FR 3617, January 18, 1995), the Department
reversed the position it had expressed in prior reviews of that order
and in Outokumpu/Sweden, and determined that the payments made by the
Swedish parent to OCUSA should in fact be treated as commissions.
The petitioners argue that the payments are directly related to
sales since they are paid on a percentage basis, based on the value of
the sales made. The petitioners point out that the Department found in
prior reviews that the payments were directly related to sales. The
petitioners add that, based on the U.S. sales verification, OBV's
questionnaire response, and OBV's discussion of the commission issue in
its pre-hearing brief, the respondent appears to have understated
commissions and to have provided contradictory information as to
whether certain commissions, including those paid to an unrelated
party, were paid on a percentage basis or on a fixed cents-per-pound
basis.
The petitioners also argue that by law, the burden of proof
concerning whether commission rates are arm's length is the
respondent's, citing Timken Co. v. United States, 673 F. Supp. 495, 513
(CIT 1987). The petitioners maintain that the respondent has not met
this burden of proof.
Concerning the third type of payments in question, those which the
respondent characterizes as mark-ups between its intra-company transfer
price and the price paid by the unrelated customer to OCUSA, the
petitioners argue that, if the sales to which these payments correspond
were truly purchase price sales, then ``such an arrangement clearly
constitutes a commission payment''. If, on the other hand, OBV's prices
to unrelated customers were adjusted by OCUSA's addition of a further
charge to the customer, then these are exporter's sales price (ESP)
sales, rather than purchase price sales.
The petitioners cite the respondent's statement at the U.S. sales
verification, that the commission payments paid by OBV to OCUSA consist
of a percentage of sales price plus add-on costs including a charge for
warehouse cost and freight. The petitioners argue that such charges
ought to have been separately reported by the respondent and treated by
the Department as direct deductions from U.S. price (USP).
In light of the information discovered at verification, the
petitioners argue, the Department should handle the reported commission
payments as follows: For payments to the unrelated commissionaire,
apply a rate based on the percentage of sales which is stipulated in
the contract, rather than on a cents-per-pound rate. For payments by
OBV to OCUSA reported as commissions, i.e., for both the second and
third types of payments reported by the respondent, the petitioners
argue that the Department should assume that of the total commission
amount reported, only the same percentage as was paid to the outside
commissionaire corresponds to actual commissions; any remaining amount
should be treated as other direct costs and deducted from USP. The
petitioners argue that this adjustment of the reported commission
payments should cover all sales made through OCUSA, since the blending
of separate expenses within the commission amounts occurred in both
standard and closed-consignment sales.
Department's Position: Concerning the first type of payments, those
made to Global, there is no dispute that the payments were directly
related to sales and should be deducted from USP for ESP sales, and
added to foreign market value (FMV) for purchase price sales.
We disagree with the petitioners that OBV understated the amounts
of these payments. The apparent difference noted by the petitioners
between the percentage in the contract and OBV's reported commission
payments is explained by other terms of the contract and in OBV's
response. The contract with Global called for a limit on the commission
for the portion of invoices associated with metal content; for this
portion, the contract called for OBV to pay a lesser commission on all
metal content exceeding a stipulated per-pound price. In fact, the
amounts listed in OBV's submission (listed on a cents-per-pound basis),
when converted to a comparable percentage, confirm that OBV adhered to
the terms of the contract. Therefore, we have accepted the reported
payments as accurate.
Concerning the second type of payment, those made to OCUSA by OBV,
we reject petitioners' argument that the respondent has the burden of
proving that such payments were not arm's length, as it is contrary to
our practice. See Outokumpu/Sweden, 850 F. Supp. at 20-23; Final
Determination of Sales at Less Than Fair Value: Stainless Steel Bar
From Spain, 59 FR 66931, December 28, 1994 (Comment 4).
As we explained in Final Determination of Sales at Less Than Fair
Value; Coated Groundwood Paper from Finland, 56 FR 56359 (November 4,
1991), we have interpreted LMI to mean that related-party commissions
paid in either the United States or the home market are allowable as
circumstance-of-sale adjustments when they are determined to be (a) at
arm's
[[Page 1326]]
length and (b) directly related to the sales in question. Specifically
with regard to the arm's-length prong of this test, ``Commerce has
chosen to operate under the assumption that commission payments in
related-party transactions are not at arm's length.'' Outokumpu/Sweden,
850 F. Supp. at 22. Because we presume that the related-party payments
were not at arm's length, we do not require the respondent to prove
that they were not at arm's length. Id.
The record in this review indicates that OBV's payments to OCUSA
included amounts for freight, warehousing, and financing expenses;
however, it does not indicate what portion, if any, of OBV's payments
to OCUSA was intended to recompense OCUSA for commission-related
services it provided equivalent to those provided by the unrelated
party, Global. In addition, the record evidence shows that OBV's
payments to OCUSA differed significantly in toto from those paid to the
unrelated party. Given these circumstances, we are unable to compare
OBV's payments to OCUSA to payments by OBV to the unrelated party for
the purpose of assessing the arm's-length nature of OBV's payments to
OCUSA. Therefore, we have treated OBV's payments to OCUSA as not at
arm's length.
Accordingly, as in the prior reviews of this order (88-90) (57 FR
9536, March 19, 1992), we did not adjust for these payments as
commissions in this review. However, we normally regard such payments
to related parties as indirect selling expenses (see Television
Receivers, Monochrome and Color, from Japan: Final Results of
Administrative Review, 54 FR 13924 (April 6, 1989)). Thus, we added
these payments to indirect selling expenses in the ESP calculations for
these final results.
As for payments of the third type, those which were limited to
closed-consignment sales, we disagree with the petitioners that these
constitute commissions. The respondent has explained that these
payments corresponded to the difference, if any, between the transfer
price which OBV charged OCUSA and the price which OBV charged the
American customer. As with the second type of payment discussed above,
there is no evidence to overcome the presumption, which is supported by
OBV's questionnaire response, that the portion of the price which OCUSA
retained on closed consignment sales amounted to a transfer of funds
from the parent to the U.S. subsidiary, rather than an arm's length
commission. Thus, because we do not consider this third type of
payment, involving closed-consignment purchase price sales, to be a
commission, we have made no adjustment for these payments in these
final results.
We also disagree with the petitioners' further argument that, if we
do not treat as a commission the portion of closed- consignment sales
prices which OCUSA retained, then we must characterize the sales in
question as ESP sales. As OBV has pointed out, the terms of sale were
governed by the long-term contracts entered into by these customers and
OBV prior to importation and were not subject to adjustment by OCUSA
following importation. Since the evidence on the record indicates that
OCUSA functioned merely as a facilitator of documents, performing
Customs clearance and related services, and that the terms of sale
between OBV and the final customer were set prior to importation, we do
not agree with the petitioners' argument that these sales should be
reclassified as ESP transactions.
Value-Added Tax Adjustment Methodology
Comment 2: OBV argues that the Department must apply a tax-neutral
methodology to the adjustment for value-added tax (VAT), and asks the
Department to adjust for the VAT by using the actual amount of the VAT,
rather than the VAT rate. The amount of the VAT, the respondent
explains, can be calculated by multiplying the gross unit price times
18.5 percent. The respondent argues that the use of the VAT rate is
arbitrary, capricious, and inherently unfair because it artificially
inflates any dumping margin OBV may have. The respondent argues that
this practice contravenes the Department's obligation to calculate fair
and accurate margins.
OBV requests that the Department alter its methodology for the
final results of review in accordance with footnote 4 of the decision
of the Federal Circuit in Zenith Electronics Corp. v. United States,
988 F. 2d 1573, 1577 (Fed. Cir. 1993), (Zenith) and the decision of the
CIT in Hyster Co. v. United States, Slip Op. 94-34 (March 1, 1994), at
11. The respondent argues that this change would eliminate the
``multiplier effect'' caused by applying the VAT rate rather than the
actual VAT amount for each home market sale.
Department's Position: In light of the Federal Circuit's decision
in Federal Mogul v. United States, CAFC No. 94-1097, the Department has
changed its treatment of home market consumption taxes. Where
merchandise exported to the United States is exempt from the
consumption tax, the Department will add to the U.S. price the absolute
amount of such taxes charged on the comparison sales in the home
market. This is the same methodology that the Department adopted
following the decision of the Federal Circuit in Zenith, 988 F. 2d
1573, 1582 (1993), and which was suggested by that court in footnote 4
of its decision. The CIT overturned this methodology in Federal Mogul
v. United States, 834 F. Supp. 1391 (1993), and the Department
acquiesced in the CIT's decision. The Department then followed the
CIT's preferred methodology, which was to calculate the tax to be added
to U.S. price by multiplying the adjusted U.S. price by the foreign
market tax rate; the Department made adjustments to this amount so that
the tax adjustment would not alter a ``zero'' pre-tax dumping
assessment.
The foreign exporters in the Federal Mogul case, however, appealed
that decision to the Federal Circuit, which reversed the CIT and held
that the statute did not preclude Commerce from using the ``Zenith
footnote 4'' methodology to calculate tax-neutral dumping assessments
(i.e., assessments that are unaffected by the existence or amount of
home market consumption taxes). Moreover, the Federal Circuit
recognized that certain international agreements of the United States,
in particular the General Agreement on Tariffs and Trade (GATT) and the
Tokyo Round Antidumping Code, required the calculation of tax-neutral
dumping assessments. The Federal Circuit remanded the case to the CIT
with instructions to direct Commerce to determine which tax methodology
it will employ.
The Department has determined that the ``Zenith footnote 4''
methodology should be used. First, as the Department has explained in
numerous administrative determinations and court filings over the past
decade, and as the Federal Circuit has now recognized, Article VI of
the GATT and Article 2 of the Tokyo Round Antidumping Code required
that dumping asssessments be tax-neutral. This requirement continues
under the new Agreement on Implementation of Article VI of the GATT.
Second, the Uruguay Round Agreements Act (URAA) explicitly amended the
antidumping law to remove consumption taxes from the home market price
and to eliminate the addition of taxes to U.S. price, so that no
consumption tax is included in the price in either market. The
Statement of Administrative Action (p. 159) explicitly states that this
change was intended to result in tax neutrality.
[[Page 1327]]
While the ``Zenith footnote 4'' methodology is slightly different
from the URAA methodology, in that section 772(d)(1)(C) of the pre-URAA
law required that the tax be added to U.S. price rather than subtracted
from home market price, it does result in tax-neutral duty assessments.
In sum, the Department has elected to treat consumption taxes in a
manner consistent with its longstanding policy of tax-neutrality and
with the GATT.
Comment 3: The petitioners argue that the Department should
eliminate from its U.S. sales data those sales for which both the dates
of sale and the dates of entry were outside the POR.
Department's Position: We agree and have removed those U.S. sales
from the analysis for which the dates of sale and dates of entry were
outside the POR.
Comment 4: The petitioners argue that the Department should revise
its preliminary width groupings used in product comparisons to achieve
a comparison of the most similar merchandise possible. The petitioners
accept in part the Department's use of the respondent's revised width
groupings, which break down the narrowest single width category used in
prior reviews into five narrower groups. The petitioners object,
however, to the broader width grouping proposed by the respondent to
replace previously-used multiple groupings above 2 inches in width, and
urge the Department to use its previous groupings for widths over 2
inches.
In rebuttal the respondent notes that in selecting the product
comparisons to be made, the Department decided to adopt the width
groupings recommended by the respondent, as they more accurately
reflected the facts of the respondent's product mix and manufacturing
processes than the previous groupings.
Department's Position: We agree with the petitioners that it is
preferable to seek model matches with the most similar possible home
market merchandise. We concur that it is reasonable to use the narrower
groupings proposed by OBV for widths of less than 2 inches, which were
agreed to by the petitioner and which were used in the preliminary
results, to the extent that these result in using more similar
merchandise for model-matching purposes.
The petitioners are concerned that cost differences could be
blurred in the widest of OBV's revised groupings, which covers all
brass sheet & strip over 2 inches in width, thus potentially resulting
in model-matching of dissimilar merchandise. For merchandise over 2
inches in width, the Department's original groupings will result in
model matches of merchandise that are more similar in physical
characteristics, as the petitioners argue. These width groupings over 2
inches in width are more similar than the respondent's proposed width
groupings. As for OBV's argument that the groupings should be based on
OBV's actual production costs, we consider the physical characteristics
of merchandise when determining similar merchandise, not similarities
or dissimilarities in production costs. For these final results,
therefore, we have used the Department's original width groupings for
merchandise over 2 inches in width; for narrower widths, we have
continued to use the respondent's revised groupings that we used in the
preliminary results.
Comment 5: The petitioners argue that the Department should adjust
USP to account for unreported further processing in the United States.
The petitioners cite the U.S. verification report's mention that ``at
least one'' sale which the respondent had classified as a purchase
price sale had been further processed in the United States, and that
this additional information had not been disclosed in OBV's response.
The petitioners emphasize the gravity of the omission of such costs, as
described in Tatung Co. v. United States, Slip Op. 94-195, at 9 (CIT
1994)(Tatung), citing Florex v. United States, 705 F. Supp. 582, 588
(1989)(Florex), where the court stated: ``Commerce considers the
omission of U.S. sales to be a serious matter, as does the court.
Overstating U.S. price is also a serious matter.'' The petitioners
compare OBV's oversight of the further processing costs in this
instance with the failure by OBV's Swedish affiliate to fully report
unpaid sales in the 1991-1992 reviews of Swedish brass, and cite the
Department's application of best information available (BIA) in that
case. Accordingly, the petitioners urge that the Department resort to
BIA and assume that all of the sales to the customer for which the
Department found these unreported further manufacturing costs were
further-manufactured sales. The petitioners suggest that the Department
should reclassify those sales as ESP and apply the further-
manufacturing costs discovered at verification to all the other sales
to that customer.
In rebuttal the respondent argues that the record demonstrates that
the Department, as a result of finding this single instance of
unreported further processing, conducted additional verification,
specifically to determine if there were other such misreported sales,
and did not find evidence of any such additional sales. The respondent
argues that the precedents which the petitioners cite in urging the
Department to apply BIA, Florex and Tatung, were different from the
present case since the respondents' submissions to the Department in
those cases contained errors as to commissions and U.S. sales expenses
(Tatung), or errors in price, quantity, or grade (Florex).
Department's Position: We disagree with the petitioners that all
sales to this one customer should be considered ESP transactions. We
sought, but did not find, any information to indicate that the single
unreported further processing charge which we discovered at
verification was representative of more widespread, or deliberate,
misreporting of such further processing expenses. Although the
existence of further processing by itself does not conclusively
establish whether a sale should be considered a purchase price or ESP
sale, we normally treat further-processed sales as ESP sales. In this
case, because we only discovered the further-processing costs at
verification, we were unable to further investigate this sale in order
to determine if it constituted a purchase price or ESP transaction. We
note that both the petitioners and OBV agree that at least this one
sale should be treated as an ESP transaction with a deduction of the
further processing costs. For these final results, therefore, as best
information available, we have treated the one sale in question as an
ESP sale and have deducted the further processing costs.
Comment 6: The petitioners argue that the Department should adjust
for unreported discounts discovered during verification. In particular,
the petitioners urge the Department to revise its analysis to reflect
certain early payment discounts to a specific U.S. customer that were
discovered at verification; according to the petitioners, the
Department should adjust all sales to the same customer for the amount
of the unreported discount.
In rebuttal the respondent asserts that the error in question is of
the type that requires a correction to the U.S. sales data base, not
the punitive application of the discount to all sales to the same
customer for which we found an unreported discount. The respondent
explains that the error arose as a result of a transfer of
responsibility for certain accounts following a corporate acquisition.
The respondent has re-examined its sales list and identified seven
sales in its case brief which it claims should be adjusted to reflect
the unreported discount.
[[Page 1328]]
Department's Position: Since the respondent's new information about
these seven sales was untimely, we have not considered it. OBV's
explanation of the reasons for its failure to report the early-payment
discount does not excuse such failure. As BIA for these unreported
discounts, we have adjusted all sales to this customer for the early
payment discount in these final results.
Comment 7: The petitioners argue that the Department should reduce
OBV's overstated prices of ESP sales invoiced by American Brass (AB), a
company which OCUSA acquired. The petitioners assert that the U.S.
verification uncovered discrepancies between the reported prices to one
U.S. customer and the amounts shown on invoices from AB. The respondent
acknowledges that it misreported these sales by not including further
processing costs in the reported unit prices. OBV suggests that the
error can be corrected by relying on the total reported sales price,
which is not in error, instead of the reported unit price.
Department's Position: We disagree with the petitioners. Since the
respondent correctly reported total sales price, it would be
unreasonable to apply punitive BIA for the erroneously reported unit
prices. Instead, for these final results we have used as the basis for
USP the total reported sales price divided by the total reported
quantity, less all adjustments, since total price and total quantity
were correctly reported.
Comment 8: The petitioners argue that the Department should adjust
the respondent's U.S. processing costs to include losses on
unaccounted-for merchandise, losses which were reported in revised data
submitted at verification.
Department's Position: We agree and have included the revised scrap
adjustments for these final results.
Comment 9: The petitioners argue that the Department should
disallow OBV's quantity discount claim for home market sales. In
rebuttal, OBV argues that it did not request such an adjustment and
that the Department did not make such an adjustment.
Department's Position: We agree with OBV. The petitioners are
mistaken that we deducted the discount from the home market price; in
fact, it was not a requested adjustment, and we did not deduct it from
home market price.
Clerical and Programming Errors
Comment 10: The petitioners argue that the Department failed to
deduct freight expenses from home market price when conducting the cost
test.
Department's Position: We agree and have deducted these freight
expenses from home market price for these final results.
Comment 11: The petitioners argue that the Department incorrectly
included several below-cost home market sales when calculating FMV. The
respondent counters that the petitioners fail to identify which below-
cost sales were erroneously included in home market sales, and notes
further that it is Department policy to include below-cost sales when
less than 10 percent of a model are found to be sold below cost within
a particular month.
Department's Position: We disagree with the petitioners. We
reviewed the computer program and we are satisfied that we did not
consider below-cost sales other than those which were properly
included, in calculating FMV.
Comment 12: The petitioners argue that the Department failed to
deduct from USP U.S. selling expenses allocated to further
manufacturing. The respondent argues that the further processing costs
in question are in fact accounted for in the computer program.
Department's Position: We agree with OBV. We included in our
analysis those U.S. selling expenses allocated to further
manufacturing.
Final Results of Review
As a result of our analysis of the comments received, we determine
that the following margin exists for OBV for the period August 1, 1990
through July 31, 1991:
------------------------------------------------------------------------
Percent
Manufacturer/exporter margin
------------------------------------------------------------------------
Outokumpu Copper Rolled Products AB (OBV)...................... 5.20
------------------------------------------------------------------------
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. Individual
differences between the USP and FMV may vary from the percentage stated
above. The Department will issue appraisement instructions directly to
the Customs Service.
Furthermore, the following deposit requirements will be effective
for all shipments of subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of these
final results, as provided for by section 751(a)(1) of the Act:
(1) The cash deposit rate for OBV will be the rate outlined above;
(2) For previously reviewed or investigated companies not listed
above, the cash deposit rate will continue to be the company-specific
rate published for the most recent period;
(3) If the exporter is not a firm covered in this review, a prior
review, or the original less-than-fair-value (LTFV) investigation, but
the manufacturer is, the cash deposit rate will be the rate established
for the most recent period for the manufacturer of the merchandise; and
(4) If neither the exporter nor the manufacturer is a firm covered
in this or any previous review conducted by the Department, the cash
deposit rate will be the ``all others'' rate of 16.99 percent
established in the LTFV investigation.
This notice also serves as a final reminder to importers of their
responsibility under 19 CFR 353.26 to file a certificate regarding the
reimbursement of antidumping duties prior to liquidation of the
relevant entries during the review period. Failure to comply with this
requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to
administrative protective orders (APOs) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 353.34(d). 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 terms of an APO is a sanctionable violation.
This administrative review and this notice are in accordance with
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.
Dated: December 14, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 96-620 Filed 1-18-96; 8:45 am]
BILLING CODE 3510-DS-P