Notice of Amendment to Final Determination and Antidumping Duty Order: Silicon Metal From Argentina

DEPARTMENT OF COMMERCE

[A-357-804]

Notice of Amendment to Final Determination and Antidumping Duty

Order: Silicon Metal From Argentina

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

EFFECTIVE DATE: July 10, 1995.

FOR FURTHER INFORMATION CONTACT:

Kristin Heim or Elizabeth Graham, Office of Countervailing

Investigations, U.S. Department of Commerce, Room B099, 14th Street and

Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-

3798 and 482-4105, respectively.

Summary

On May 30, 1995, the United States Court of International Trade

(CIT) affirmed the Department of Commerce's (the Department) April 7,

1995, remand determination and entered Final Judgment. See American

Alloys, Inc. et al. v. United States of America, Slip-Op 95-98, Court

No. 91-10-00782 (CIT May 30, 1995).

On September 26, 1991, the Department published the Antidumping

Duty Order of Silicon Metal from Argentina (56 FR 48779, September 26,

1991). The weight-averaged margin was determined to be 8.65 percent.

The Department prepared the final results of redetermination

pursuant to a remand order dated December 9, 1994, from the Court of

International Trade, which was based upon the U.S. Court of Appeals for

the Federal Circuit's opinion in American Alloys, Inc. et al. v. United

States, 30 F.3d 1469 (Fed.Cir. 1994). In accordance with the Federal

Circuit's order, the Department attempted to analyze whether indirect

taxes rebated under Argentina's Reembolso program should be accounted

for in the calculation of U.S. price (USP), pursuant to 19 U.S.C.

1677a(d)(1)(C), when determining the dumping margin. Because the

respondent refused to allow verification, the Department made its

remand determination on the basis of best information available (BIA)

which resulted in a dumping margin of 17.87 percent.

Background

The Reembolso is a program through which the Government of

Argentina provided tax and duty rebates to silicon metal exporters that

purchased domestically produced and imported inputs. In the antidumping

investigation, the Department determined that the USP should be

adjusted upward by the amount of the rebated taxes which the

respondent, Electrometalurgica Andina S.A.I.C. (Andina), received upon

export of the subject merchandise to the United States. Petitioners

challenged the methodology the Department used to make this

determination, arguing that the Department had failed to investigate

whether the taxes rebated under Reembolso were imposed directly upon

silicon metal or inputs physically incorporated into silicon metal. In

petitioners' view, this inquiry was necessary to determine which of the

taxes rebated under the Reembolso program were directly related to the

exported merchandise or components physically incorporated therein.

The CIT affirmed the Department's determination that this type of

inquiry was relevant to a countervailing investigation, but not an

antidumping investigation. The CIT also instructed the Department to

examine more closely the tax pass-through issue. American Alloys, Inc.

v. United States, 810 F. Supp. 1294, 1296 (CIT 1993). Petitioners

subsequently appealed and the U.S. Court of Appeals for the Federal

Circuit reversed and remanded the lower court's decision, holding that

the Department must undertake a directly-related inquiry in the

antidumping investigation of silicon metal from Argentina. American

Alloys, Inc. v. United States, 30 F.3d 1469 (Fed.Cir. 1994). In

addition, the Federal Circuit reversed the Court of International

[[Page 35552]]

Trade's ruling that the Department had to conduct a tax pass-through

analysis in the home market. In so doing, the Federal Circuit found

that the Department's verification in the investigation that taxes were

included in the home market price was based on sufficient record

evidence.

ITA Remand Results

The Department attempted to follow the Court's remand instructions

to examine whether each tax was directly related to the merchandise in

question and its physically incorporated components. In so doing, the

Department requested the respondent, Andina, to identify which

components used in the production of silicon metal were physically

incorporated into silicon metal, and which of the taxes rebated under

the Reembolso program were directly related to the silicon metal or the

components physically incorporated therein. Andina filed its response

and petitioners subsequently commented. The Department then issued a

deficiency questionnaire requesting additional information which the

Department concluded was necessary to complete a physical incorporation

analysis and the directly related test. Andina responded and

petitioners subsequently submitted comments on this response.

Due to the substantial amount of new information submitted by

Andina, a verification was deemed necessary. Andina initially indicated

its willingness to participate in a verification. However, Andina

subsequently informed the Department that it would not allow a

verification of the responses. Andina cited cost reductions, reduced

personnel, preparation of annual financial statements and difficulty in

locating documentation from the period of investigation (March 1

through August 31, 1990) as reasons for its decision not to participate

in the verification.

Because the respondent refused to allow verification of its

responses, the Department was forced to make its remand determination

on the basis of BIA pursuant to section 776(c) of the Tariff Act of

1930, as amended, 19 U.S.C. 1677e(c). Accordingly, as BIA, the

Department did not allow an adjustment to USP for the rebated taxes

received under the Reembolso program. Therefore, we have calculated the

dumping rates for Andina without making an upward adjustment to USP for

the amount of the Reembolso tax rebated received. In addition, the

adjustment to USP of the value-added tax (VAT) that was disallowed in

the first remand can now be reinstated. In adjusting USP for the VAT,

we employed the methodology developed as a result of the Court's

decision in Federal-Mogul, et al. v. United States, 834 F. Supp 1391

(CIT 1993). See Final Determination of Sales at Less Than Fair Value:

Calcium Aluminate Cement, Cement Clinker and Flux from France, 59 FR

14136, March 25, 1994.

Based on our examination of the record, we determine the LTFV

margin to be:

------------------------------------------------------------------------

Margin

Producer/ManufacturerExporter (percentage)

------------------------------------------------------------------------

Andina.................................................. 17.87

All others.............................................. 17.87

------------------------------------------------------------------------

Dated: June 30, 1995.

Susan G. Esserman,

Assistant Secretary for Import Administration.

[FR Doc. 95-16837 Filed 7-7-95; 8:45 am]

BILLING CODE 3510-DS-M