# Industrial Phosphoric Acid From Belgium; Preliminary Results of Antidumping Duty Administrative Review > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A97-14870 ## Record - **Collection:** Federal Register - **Document type:** Notice - **Published:** June 6, 1997 - **Citation:** 62 FR 31073 ## Text DEPARTMENT OF COMMERCE International Trade Administration [A-423-602] Industrial Phosphoric Acid From Belgium; Preliminary Results of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. ACTION: Notice of preliminary results of Antidumping Duty Administrative Review. ----------------------------------------------------------------------- SUMMARY: In response to a request from the petitioners, FMC Corporation and Albright & Wilson Americas, two domestic producers of industrial phosphoric acid (IPA), the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on IPA from Belgium. The review covers exports by one manufacturer, Societe Chimique Prayon-Rupel (Prayon), during the period August 1, 1995 through July 31, 1996. We have preliminarily determined that sales have been made below normal value (NV). If these preliminary results are adopted in our final results of administrative review, we will instruct the U.S. Customs Service (Customs) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on these preliminary results. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue; and (2) a brief summary of the argument. EFFECTIVE DATE: June 6, 1997. FOR FURTHER INFORMATION CONTACT: David Genovese or Jim Terpstra, Office of Antidumping/Countervailing Duty Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-4697/3965. SUPPLEMENTARY INFORMATION: The Applicable Statute Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are to the current regulations, as amended by the interim regulations published in the Federal Register on May 11, 1995 (60 FR 25130). Background The Department published in the Federal Register the antidumping duty order on IPA from Belgium on August 20, 1987 (52 FR 31439). The Department published in the Federal Register a notice of ``Opportunity To Request an Administrative Review'' of the antidumping duty order on IPA from Belgium covering entries during the period August 1, 1995 through July 31, 1996, on August 12, 1996 (61 FR 41768). On August 30, 1996, petitioners requested that the Department conduct an administrative review of sales by Prayon during the 1995-96 period of review. The Department initiated the review on September 17, 1996 (61 FR 48882). The Department is conducting this administrative review in accordance with section 751 of the Act. Scope of the Review The products covered by this review include shipments of IPA from Belgium. This merchandise is currently classifiable under the Harmonized Tariff Schedule (HTS) item number 2809.20. The HTS item number is provided for convenience and Customs purposes. The written description remains dispositive. Verification In accordance with section 353.25(c)(2)(ii) of the Department's regulations, we verified information provided by Prayon using standard verification procedures, including the examination of relevant sales and financial records, and selection of original documentation. Our verification results are outlined in the public version of the verification report. Level of Trade Differences in levels of trade exist when sales are made at different stages in the marketing process, as determined by different classes of customers and the performance of qualitatively or quantitatively different selling functions in selling to them. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom; Final Results of Antidumping Duty Administrative Review, 62 FR 2081, 2105, (January 15, 1997). In its questionnaire response, Prayon did not state that there were differences in selling activities by customer categories within each market or between markets. Therefore, in the absence of information in Prayon's questionnaire responses which might lead us to a different conclusion, we have determined for purposes of these preliminary results that all sales in the home market and the U.S. market were made at the same level of trade and no adjustment pursuant to section 773(a)(7)(A) of the Act is warranted. Commissions The Department operates under the assumption that commission payments to affiliated parties (in either the United States or home market) are not at arm's length. The Court of International Trade has held that this is a reasonable assumption. See Outokumpu Copper Rolled Products AB v. United States, 850 F. Supp. 16, 22 (1994). Accordingly, the Department has established guidelines to determine whether affiliated party commissions are paid on an arm's-length basis such that an adjustment for such commissions can be made. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, 61 FR 57,629 (November 7, 1996). First, we compare the commissions paid to affiliated and unaffiliated sales agents in the same market. If there are no commissions paid to unaffiliated [[Page 31074]] parties, we then compare the commissions earned by the affiliated selling agent on sales of merchandise produced by the respondent to commissions earned on sales of merchandise produced by unaffiliated sellers or manufacturers. If there is no benchmark which can be used to determine whether the affiliated party commission is an arm's-length value (i.e., the producer does not use an unaffiliated selling agent and the affiliated selling agent does not sell subject merchandise for an unaffiliated producer), the Department assumes that the affiliated party commissions are not paid on an arm's-length basis. In this case, Prayon used an affiliated sales agent in the home market and a different affiliated sales agent in the United States. Prayon did not use unaffiliated commissionaires during the POR and Prayon's affiliated home market and U.S. selling agents did not act as commissionaires for unaffiliated producers of the subject merchandise. As a result, we were unable to establish a benchmark for use in determining whether commission payments Prayon made to the affiliated selling agents were at arm's length. Accordingly, we did not make a circumstance of sale adjustment for commissions in either market. United States Price We based our margin calculations on export price (EP), as defined in section 772(a) of the Act, because Prayon sold the merchandise directly to unaffiliated U.S. purchasers prior to the date of importation and the constructed export methodology was not indicated by information on the record. We based EP on the delivered price to unaffiliated purchasers in the United States. In accordance with section 772(c)(2)(A) of the Act, we made deductions for inland and marine insurance, brokerage and handling costs and freight expenses incurred to deliver the merchandise to the first unaffiliated customer in the United States. We also made a deduction for early payment discounts. No other adjustments to EP were claimed or allowed. Normal Value In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared Prayon's volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(B) of the Act. Because Prayon's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales of the subject merchandise, we determined that the home market provides a viable basis for calculating NV for Prayon, pursuant to section 773(a)(1)(B) of the Act. Pursuant to section 777A(d)(2) of the Act, we compared the EP of individual transactions to the monthly weighted-average price of sales of the foreign like product. We based NV on the delivered or ex-works price at which the foreign like product is first sold to unaffiliated purchasers for consumption in the exporting country, in the usual commercial quantities and in the ordinary course of trade, and to the extent practicable, at the same level of trade as the export price, as required by section 773(a)(1)(B)(i) of the Act. We excluded from our analysis of NV sales to an affiliated home market customer because the weighted-average sales price to the affiliated party was less than 99.5 percent of the weighted-average sales price to unaffiliated parties. See Usinor Sacilor v. United States, 872 F. Supp. 1000, 1004 (CIT 1994). We reduced NV by freight costs, including inland insurance costs, incurred in the home market, in accordance with section 773(a)(6)(B)(ii). We also reduced NV for rebates and early payment discounts. We made a circumstance of sale adjustment to NV to account for any differences between EP and NV due to differences in credit expenses, pursuant to 773(a)(6)(C)(iii) of the Act. In calculating credit expense, Prayon reported the weighted-average discount on accounts receivable sold to its affiliated coordination center. Since the reported weighted-average credit expense is greater than the weighted-average credit expense calculated using the standard credit calculation (i.e., (date of payment less date of shipment/ 365)*monthly home market short-term interest rates * gross price), we have determined that the discount transaction between Prayon and its affiliated coordination center is not conducted at arm's-length. Accordingly, we have used the standard credit calculation when calculating the amount of credit to deduct from normal value. We used the monthly home market short-term borrowing rates provided by Prayon in calculating inventory carrying costs as the basis for the monthly home market short-term interest rates used in the credit calculation. No other adjustments were claimed or allowed. Preliminary Results As a result of this review, we preliminarily determine that a margin of 8.54 percent exists for Prayon for the period August 1, 1995, through July 31, 1996. Parties to this proceeding may request disclosure within five days of publication of this notice and any interested party may request a hearing within 10 days of publication. Any hearing, if requested, will be held 44 days after the date of publication, or the first working day thereafter. Interested parties may submit case briefs no later than 30 days after the date of publication. Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed no later than 37 days after the date of publication. Parties who submit arguments are requested to submit with the argument (1) a statement of the issue and (2) a brief summary of the argument. The Department will publish a notice of the final results of the administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of this notice. The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. Individual differences between USP and NV may vary from the percentage stated above. Upon completion of this review, the Department will issue appraisement instructions directly to Customs. Furthermore, the following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of IPA from Belgium entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for Prayon will be the rate established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in the original less than fair value (LTFV) investigation or a previous review, the cash deposit will continue to be the rate established for the most recent period for which the manufacturer or exporter received a company-specific rate; (3) if the exporter is not a firm covered in this review, or the original investigation, but the manufacturer is, the cash deposit rate will be that 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 reviews, [[Page 31075]] the cash deposit rate will be 14.67 percent, the all-others rate established in the LTFV investigation. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review. This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 353.26(b) 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 the subsequent assessment of double antidumping duties. This administrative review and notice are in accordance with section 751(a)(1) of the Act and 19 CFR 353.22. Dated: May 30, 1997. Robert S. LaRussa, Acting Assistant Secretary for Import Administration. [FR Doc. 97-14870 Filed 6-5-97; 8:45 am] BILLING CODE 3510-DS-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-14870. Public record. Not legal advice.