Certain Cut-to-Length Carbon Steel Plate From Belgium; Final Results of Antidumping Duty Administrative Review

DEPARTMENT OF COMMERCE

International Trade Administration

[A-423-805]

Certain Cut-to-Length Carbon Steel Plate From Belgium; 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 September 15, 1997, the Department of Commerce (the

Department) published the preliminary results of its 1995-96

administrative review of the antidumping duty order on cut-to-length

carbon steel plate from Belgium (62 FR 48213). This review covers one

manufacturer/exporter of the subject merchandise, Fabrique de Fer de

Charleroi, S.A. (FAFER), and its subsidiary, Charleroi (USA) for the

period August 1, 1995 through July 31, 1996.

EFFECTIVE DATE: January 20, 1998.

FOR FURTHER INFORMATION CONTACT:

Maureen McPhillips or Linda Ludwig, Office of AD/CVD Enforcement, Group

III, Import Administration, International Trade Administration, U.S.

Department of Commerce, 14th Street and Constitution Avenue, NW.,

Washington,

[[Page 2960]]

DC 20230; telephone (202) 482-0193 or 482-3833, respectively.

SUPPLEMENTARY INFORMATION:

Background

On September 15, 1997, the Department published in the Federal

Register (62 FR 48213), the preliminary results of the 1995-96 review

of the antidumping duty order on certain cut-to-length carbon steel

plate from Belgium (58 FR 44164). At the request of petitioners, we

held a public hearing, which included a closed session for the

discussion of proprietary information, on November 18, 1997. The

Department has now completed this administrative review in accordance

with section 751 of the Tariff Act of 1930, as amended (the Act).

Applicable Statute and Regulations

Unless otherwise indicated, all citations to the statute are

references to the provisions effective January 1, 1995, the effective

date of the amendments made to the Tariff Act of 1930 by the Uruguay

Round Agreements Act (URAA). In addition, unless otherwise indicated,

all references to the Department's regulations are to 19 CFR part 353

(April 1, 1997).

Scope of the Order

The products covered by this administrative review constitute one

``class or kind'' of merchandise: certain cut-to-length carbon steel

plate. These products include hot-rolled carbon steel universal mill

plates (i.e., flat-rolled products rolled on four faces or in a closed

box pass, of a width exceeding 150 millimeters but not exceeding 1,250

millimeters and of a thickness of not less than 4 millimeters, not in

coils and without patterns in relief), of rectangular shape, neither

clad, plated nor coated with metal, whether or not painted, varnished,

or coated with plastics or other nonmetallic substances; and certain

hot-rolled carbon steel flat-rolled products in straight lengths, of

rectangular shape, hot rolled, neither clad, plated, nor coated with

metal, whether or not painted, varnished, or coated with plastics or

other nonmetallic substances, 4.75 millimeters or more in thickness and

of a width which exceeds 150 millimeters and measures at least twice

the thickness, as currently classifiable in the Harmonized Tariff

Schedule (HTS) under item numbers 7208.40.3030, 7208.40.3060,

7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000,

7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030,

7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, and

7212.50.0000. Included are flat-rolled products of nonrectangular

cross-section where such cross-section is achieved subsequent to the

rolling process (i.e., products which have been ``worked after

rolling'')--for example, products which have been beveled or rounded at

the edges. Excluded is grade X-70 plate. The HTS item numbers are

provided for convenience and Customs purposes. The written description

remains dispositive.

Analysis of Comments Received

We gave interested parties an opportunity to comment on the

preliminary results of review. The Department received briefs and

rebuttal briefs from the petitioners, Bethlehem Steel Corporation, U.S.

Steel Company, Inc., (a Unit of USX Corporation), Inland Steel

Industries, Inc., Geneva Steel, Gulf States Steel Inc. of Alabama,

Sharon Steel Corporation, and Lukens Steel Company, and the sole

respondent in this case, Fabrique de Fer de Charleroi. Based on our

analysis of the issues discussed in these briefs, we have changed these

final results of review from those published in our preliminary

results.

General Comments

Comment 1: The petitioners argue that the Department must deduct

actual antidumping and countervailing duties paid by respondents'

affiliated importers from the price used to establish export price (EP)

or constructed export price (CEP).

Department's Position: We disagree with petitioners. We continue to

adhere to the statutory interpretation articulated in the final results

of Certain Cold Rolled and Corrosion-Resistant Carbon Steel Flat

Products from Korea: Final Results of Antidumping Duty Administrative

Reviews (62 FR 18404), under which we do not make the deduction. The

Department's decision in that case not to make the deduction was

recently affirmed by the Court of International Trade (CIT), See Ak

Steel Corp. et al. v. United States, Slip Op. 97-160 (CIT, December 1,

1997).

Comment 2: The petitioners contend that the Department's duty

absorption determination in the preliminary results is generally flawed

for two major reasons.

First, petitioners assert that by inviting the parties to submit

new factual information after verification in order to rebut its

presumption that ``duties will be absorbed for those sales which were

dumped,'' the Department undermines the statutory and regulatory

requirement that it rely only on verified information in the Final

Results. In petitioners' view, allowing respondents to place

information on the record which cannot be verified places petitioners

at a distinct disadvantage, and is inconsistent with a recent ruling by

the Court of Appeals for the Federal Circuit. See Creswell Trading Co.

v. United States, 15 F.3d 10543, 1060 (Fed. Cir. 1994). They urge the

Department to abandon this poorly conceived method and to collect all

relevant duty absorption evidence at the same time as it collects

information necessary to complete its dumping analysis.

Second, petitioners believe the Department's methodology has the

potential to understate the extent to which antidumping duties were

absorbed. The Department's methodology, they affirm, can give the

casual reader the mistaken impression that the total amount of duties

absorbed was limited to the dumped sales included in the final

antidumping duty calculated. As the overall dumping margin is weight

averaged, petitioners contend, the true level of dumping, and thus of

duty absorption, is significantly greater than the overall margin. To

resolve this problem, petitioners argue that the Department should

state its duty absorption finding as the percentage of sales dumped

along with the average level of dumping for those sales (emphasis in

the original). For example, if five percent of a respondent's sales

were dumped, and the overall weighted-average dumping margin were forty

percent, the Department should state that the respondent absorbed

duties on five percent of sales at a margin of forty percent.

Department's Position: After careful consideration of petitioners'

views, we have left our duty absorption methodology unchanged from the

preliminary results.

Contrary to petitioners' contention that we violated the statute by

inviting submission of new factual information after verification, our

regulations allow us to invite submission of factual information from

parties at any time during a proceeding. If a party submits information

as a result of such an invitation, we afford all other interested

parties an opportunity to comment in writing on such information (see,

Sec. 353.31(a)). See Comment 6 for the Department's position on the

duty absorption issue as it relates specifically to FAFER. Moreover,

the statute and regulations do not require that all information

submitted to the Department be examined at verification.

[[Page 2961]]

See, Monsanto v. United States, 698 F. Supp. 275,281 (CIT 1988).

We believe the approach suggested by petitioners is inappropriate

and unreasonable for the following reasons: (1) A transaction-specific

determination on duty absorption is impractical because dumping margins

on individual transactions are ``business proprietary;'' (2)

Petitioners' approach would result in an artificially inflated duty

absorption percentage which would cause unnecessary confusion. In a

hypothetical case where, if only one sale were dumped out of one

hundred U.S. sale transactions, but at a margin of twenty percent,

petitioners apparently would have the Department determine that duty

absorption had occurred at a rate of twenty percent on one percent of

the sales. We find this approach inappropriate and not mandated by

either statute or regulation. Our analysis focuses on the entire POR.

We find that our methodology better represents absorption during the

POR.

Accordingly, for purposes of these final results, we have left our

duty absorption methodology unchanged.

Company-Specific Comments

Comment 1: The petitioners claim that total facts available is

warranted in this case because the ultimate ownership of FAFER and the

full extent of the company's affiliations remain largely unknown

despite the Department's repeated requests for such information. The

petitioners contend that party affiliation can affect every aspect of

the Department's analysis, including the arm's-length test, model

matching, and the sales-below-cost test. Therefore, the petitioners

request that the Department employ total facts available for the final

results.

The petitioners note that in the preliminary results the Department

found that FAFER is affiliated to a steel service center to which it

sold subject merchandise during the POR. According to petitioners,

FAFER's refusal to report downstream sales of this reseller violated

the Department's explicit instructions in its questionnaire not to

report sales to affiliated resellers in the home market, but instead to

report ``downstream sales,'' i.e., ``the resales by the affiliates to

unaffiliated customers.'' In addition, the petitioners claim that FAFER

failed to contact the Department immediately, as instructed, if it

would be unable to report downstream sales as requested.

The petitioners point out that in its response to the Department's

supplemental questionnaire, FAFER once again failed to report the

requested downstream sales data, but claimed that the service center

``must * * * be considered as an unaffiliated customer'' because FAFER

is only a minor shareholder of {the service center} and as a result has

no control on it.'' See FAFER's January 13, 1997 Letter to the

Department of Commerce at 12-13. The petitioners argue that FAFER's

persistent attempts to obscure the true nature of its corporate

structure compelled the Department to make an adverse inference with

regard to the level of the Boel family's equity holdings in FAFER and

consequently, FAFER's sales to this customer were subjected to and

failed the arm's-length test. Furthermore, the petitioners claim that

the egregious nature of FAFER's refusal to provide the requested

information is compounded by the fact that some of the information in

question ultimately has proven to be publicly available from other

sources.

The petitioners state that the Department has, in the past,

determined that the application of facts available is warranted in

certain instances in which a respondent fails to report downstream

sales. For example, in Certain Cold-Rolled Carbon Steel Flat Products

from Argentina, 59 FR 37062, 37077 (July 9, 1993), the petitioners

state that ``when the respondents could not, or would not, report

downstream sales, we applied margins based on BIA to any U.S. sale

matched only to a sale to a related reseller in the home market that

failed the arm's-length test.'' The petitioners believe that such an

approach should be used in this case.

The petitioners acknowledge that the Department may exempt

respondents from reporting downstream sales if they are ``unable'' to

obtain this information, but contend that FAFER has not met this

burden. In fact, according to the petitioners, FAFER should have been

able to provide the requested data because FAFER and the service center

are affiliated not only through equity holdings, but also through

extensive overlapping membership of their boards of directors and

through family groupings.

Consequently, the petitioners recommend that the Department make an

adverse inference and employ total facts available, using a dumping

margin of 42.64 percent, the highest margin alleged in the original

petition; or, in the alternative, the margin of 13.31 percent from the

less-than-fair-value (LTFV) investigation.

The respondent counters that there is no statutory provision

requiring the Department to use the downstream sales of an affiliated

reseller, and petitioner fails to cite any legal support for any

requirement on the Department to do so, particularly where the finding

of affiliation is one based on facts available in the first instance.

Moreover, the respondent contends that the Department has already

resorted to facts available in determining that the steel service

center is an affiliated reseller in the home market, and has therefore

already acted in a manner adverse to respondent's interests (since this

allowed the Department to conduct the arm's-length test, which led to

the elimination of all identical matching home market sales to that

service center). In FAFER's opinion, the Department should dismiss the

petitioners' request that we resort to total facts available because

FAFER did, in fact, cooperate with the Department to the fullest extent

possible, reporting downstream sales to at least one affiliated

reseller. Finally, FAFER maintains that it did not have the authority

to obtain downstream sales data from the service center in question.

Department's Position: We have determined that FAFER and the steel

service center to which FAFER sold subject merchandise during the POR

are affiliated by means of Boel family control, pursuant to section

771(33) (see, Certain Cut-to-Length Carbon Steel Plate from Belgium;

Preliminary Results of Antidumping Duty Administrative Review (62 FR

48213)).

Section 776(b) of the Act requires that if an interested party

fails to cooperate by not acting to the best of its ability to comply

with the Department's request for information, the Department may use

an adverse inference in selecting from the facts otherwise available.

Thus, we may resort to adverse facts available in response to FAFER's

failure to report downstream sales unless FAFER establishes that it

could not compel its affiliate to report those downstream sales (cf.,

Notice of Final Results and Partial Recission of Antidumping Duty

Administrative Review; Roller Chain, Other Than Bicycle, From Japan (62

FR 60472, 60476) (November 10, 1997)). Although FAFER claims that it

could not compel its affiliated customer to provide downstream sales

information, we cannot accept this claim based solely on the

information FAFER has provided. Respondent has the burden of proof to

show that it cannot compel the reporting of downstream sales. However,

recognizing that the Department did not inform FAFER of certain

deficiencies in its attempt to establish such a claim, we have elected

not to use adverse facts available.

As the result of our conclusion that FAFER and the steel service

center were indeed affiliated, we applied our arm's-length test and

found that sales to the

[[Page 2962]]

affiliated customer, the steel service center, were not made at arm's-

length prices, i.e., at prices comparable to prices at which the

respondent sold identical merchandise to unaffiliated customers. In

addition, based on the Department's previous determination to disregard

sales made at below the cost of production (COP) in the original LTFV

investigation, we had reasonable grounds to believe or suspect that

sales of the foreign like product under consideration for the

determination of NV in this review may have been made at prices below

the COP, as provided by section 773(b)(2)(A)(i) of the Act. Therefore,

pursuant to section 773(b)(1) of the Act, we initiated a COP

investigation of sales by FAFER in the home market. The results of the

sales-below-cost test revealed that the remaining home market sales to

unaffiliated parties which provided contemporaneous matches with the

U.S. sales, failed the sales-below-cost test and could not be used for

the calculation of normal value (see, Certain Cut-to-Length Carbon

Steel Plate from Belgium: Preliminary Results of Antidumping Duty

Administrative Review (62 FR 48213)). Therefore, in accordance with

section 773(a)(4) of the Act, we have continued to disregard all home

market sales and have used constructed value as the basis for normal

value for these final results.

Comment 2: Although the petitioners do not dispute that the

commission that FAFER paid to its agent in connection with U.S. sales

represents a reasonable proxy for FAFER's unreported U.S. indirect

selling expenses, they do object to the commission amount applied by

the Department in its margin calculation.

The petitioners state that since FAFER did not provide any

documents regarding its commission payments to Charleroi USA, the

Department attempted to calculate the commission. However, the

petitioners maintain that the commission amount calculated by the

Department is plainly inconsistent with information on the record in

this review.

In addition, the petitioners assert that the disparity between the

U.S. commission amount and the home market commission amount

underscores their assertion that the figure used by the Department is

not an accurate measure of FAFER's U.S. commission expense.

The petitioners contend that the record provides sufficient

information to calculate properly the commission amount to deduct from

CEP. They note that in its response to the Department's questionnaire,

FAFER states that it pays its affiliate, Charleroi USA, a commission

calculated as a specific rate of ``the minimum prices mentioned in

FAFER's (sic) price guide.'' (see, Section A Response). They suggest

that this evidence on the record provides sufficient information for

the Department to calculate properly the commission amount to deduct

from constructed export price. The petitioners urge the Department to

use this commission rate applied to the price in the price guide as

facts available for FAFER's U.S. commission expense.

In its brief, FAFER rejects the petitioners' claim that the

Department used the incorrect amount when deducting from CEP the

commission paid to its affiliate, Charleroi U.S.A. Moreover, FAFER

maintains the petitioners' contention that the Department should use

the rate mentioned in its Section A response reveals a

misinterpretation of FAFER's commission policy on the part of

petitioners. FAFER contends that its Section A statement was a general

policy statement and, as indicated by the context of item 3.1 of the

Section A response, is subject to the circumstances under which sales

are actually negotiated, as well as to the resulting price. For the

particular sale at issue, FAFER states that the general policy on

commissions was superseded by the facts and circumstances of the sale,

and the Department, based upon the records of the sale reviewed at

verification, determined the commission actually paid per metric ton.

In FAFER's opinion, in light of the availability of specific sales

data, there is no need for application of a general policy which did

not take effect in the case of the sale in question.

Furthermore, in its rebuttal brief, FAFER states that upon further

investigation of the U.S. sales documentation, it has determined that

it did not pay any commissions to its U.S. affiliate during the POR and

no basis exists for imputing an amount to its one U.S. sale. FAFER

cites to U.S. Sales Verification Report, Exhibit 10 as proof that no

U.S. commission was paid. FAFER asserts that this evidence backs up its

submissions to the Department in which it unambiguously stated that its

affiliate, Charleroi U.S.A., received no commission on the subject

sale.

FAFER also asserts that the amount the Department used as the U.S.

commission expense in its preliminary results was probably, to the best

recollection of FAFER's counsel who was present at verification, a

service charge by transmitting banks. FAFER urges the Department not to

increase the U.S. commission amount, as petitioners request, but reduce

FAFER's commission amount to zero.

In rebuttal, the petitioners assert that FAFER is attempting to

downplay its stated policy regarding its commission payments to

affiliates and seeking to recast its commission policy to accommodate

the amount used in the preliminary results. The petitioners maintain

that, contrary to FAFER's contention, its section A response states

that commissions may be paid either by permitting the affiliated agent

to withhold a portion of the sales proceeds, or by issuance of a credit

note after the transaction is completed (see Letter from Barnes

Richardson & Colburn to the U.S. Department of Commerce, at 4 (October

21, 1996)). The petitioners maintain that this statement is evidence

that although the method of payment may vary from sale to sale, there

is no indication that the commission amount itself may vary. Therefore,

the petitioners reiterate their contention that the Department should

deduct the appropriate commission amount from CEP and not the

inaccurate amount used in the preliminary results.

Moreover, the petitioners note that FAFER's failure to report

indirect selling expenses incurred in the U.S. resulted in the

Department's use of the commission amount that FAFER paid its agent as

the facts otherwise available to fill this void in FAFER's data. While

the petitioners fully support the Department's determination to make

this adjustment to CEP as facts available for unreported U.S. indirect

selling expenses, they assert that the Department should use the

commissions that FAFER paid in connection with U.S. sales only if those

commissions represent a reasonable proxy for FAFER's unreported U.S.

indirect selling expenses. The petitioners point out that in order to

give effect to the purpose of the facts available provision of the

statute, the information selected as facts available must have

probative value, and must be sufficient to induce respondents to

respond fully to the Department's information requests in the future

(see, Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190-91

(Fed. Cir. 1990)). Should the Department erroneously determine that the

understated commission amount used in the preliminary results is

accurate, the petitioners suggest a more accurate amount for indirect

selling expenses derived from Charleroi USA's financial statements.

Department's Response: We agree with the respondent's contention

that further examination of the U.S. sales documentation obtained at

verification

[[Page 2963]]

reveals that FAFER did not pay any commission on the U.S. sale in

question. We also agree with petitioners that the U.S. commission

amount calculated by the Department and used in the preliminary results

as a proxy for FAFER's U.S. indirect selling expenses is inappropriate

and does not reflect an adverse inference. Such an inference is

justified by FAFER's refusal to comply with the Department's requests

for information on its U.S. indirect selling expenses.

The commission amount used by the Department in the preliminary

results was an unrealistically low commission rate and inconsistent

with the commission rate reported by FAFER in its Section A response at

4 (see the Department's October 8, 1997, Internal Memorandum from Helen

Kramer to the File). Moreover, FAFER acknowledges that the U.S.

commission amount used in the preliminary results probably represented

a service fee charged by transmitting banks (see, Respondent's Rebuttal

Brief, October 22, 1997 at 4, Footnote 8), not a commission amount.

Therefore, for these final results, while we have continued to use

FAFER's U.S. commission expense as facts available for FAFER's failure

to report U.S. indirect selling expenses (see, Analysis Memorandum from

Analyst to the File, January 12, 1998), we are using a different

estimate of this expense. We find that the commission rate FAFER

typically pays its U.S. affiliate is the most reasonable estimate of

U.S. indirect selling expenses (see, FAFER's Section A Response at 4).

Comment 3: The petitioners note that in its preliminary results,

the Department subtracted home market commissions from CV as a

circumstance-of-sale adjustment, but did not include the value of home

market commissions in the calculation of the CV itself. The petitioners

state that pursuant to statutory mandate, the Department's margin

calculation program should include all direct selling expenses in the

calculation of CV, including commissions. See 19 U.S.C.

Sec. 1677(e)(2)(A).

FAFER maintains that the filed designated general and

administrative (G&A) expenses already includes amounts reported in its

Section D response as home market commissions. According to the

respondent, the Department verified FAFER's reported G&A amounts which

included commissions, and to include them again in the calculation of

CV would result in double-counting. FAFER cites generally to Cost

Verification Report, March 24, 1997, at p. 26 and Cost Verification,

Exhibit 7a in support of its position.

Department's Position: We agree with petitioners. In its original

Section D submission of November 18, 1996, FARER noted that commissions

were included in the variable field G&A. In its submission of January

21, 1997, FAFER, on instructions from the Department, reported home

market commissions in a separate field in sections B and C. At the

sales verification, we determined that the commission field was zero

and the indirect selling expense field included only commissions paid

to its affiliate. At the cost verification, the Department reviewed

FAFER's G&A calculation and found it contained only general and

administrative items. At verification FAFER did not indicate that any

of the G&A expense categories included selling expenses. A review of

the Cost Verification Report and Exhibit 7a of that report, cited by

the respondent, supports the Department's conclusion that home market

commission expenses were not included in G&A expenses.

The absence of any verified account which can be tied to home

market commissions leaves us no choice but to conclude that home market

commissions are not included in FAFER's reported G&A expenses.

Therefore, we agree with petitioners that the Department erroneously

understated CV in its preliminary results by not including home market

commissions, pursuant to 19 U.S.C. Sec. 1677b(e)(2)(a), in its

calculation of CV. For these final results, we have added home market

commissions in calculating CV (see, Analysis Memorandum from Analyst to

the File, January 12, 1998).

Comment 4: The petitioners contend that in its calculation of CV

profit in the preliminary results, the Department did not determine the

total cost and the profit rate on the same basis. They maintain that

home market commissions were included in the denominator of the ratio

to determine that profit rate, but they were not included in the total

costs multiplied by the profit rate to determine the per unit amount of

CV profit. Therefore, they conclude that the Department should revise

its margin calculation program to ensure that commissions are treated

consistently throughout the Department's CV calculations.

FAFER counters that for the same reason it articulated in regard to

commissions (see Comment 3), the Department should disregard the

petitioner's request to recalculate CV profit.

Department's Position: We agree with petitioners. In order to

calculate CV correctly, we must include commissions in the total costs

multiplied by the profit rate in our calculation of CV profit.

Accordingly, we have changed the computer program for these final

results (see Comment 4 above).

Comment 5: The petitioners assert that certain of FAFER's claimed

home market indirect selling expenses were, in fact, commissions, as

indicated in the Department's Sales Verification Report at 11. In the

petitioner's opinion, it seems incredible that a company would not

incur any home market indirect selling expenses and, therefore, the

Department should rely on the facts available and increase FAFER's

reported SG&A expense, using the sales and cost of goods sold figures

from FARER's unconsolidated statements.

FAFER maintains that no basis exists for increasing its calculated

SG&A expense rate by the petitioner's randomly chosen percent because

(1) the petitioners provide no mathematical explanation for this

figure, and (2) any amounts that the Department would ordinarily deem

indirect selling expenses were included in FAFER's SG&A rate, which

reconciled with its financial statement at verification.

Department's Position: We agree with petitioners. As we stated in

our response to Comment 3 above, home market indirect selling expenses

are not included in the G&A filed or the indirect selling expense

field. In addition, despite the Department's request in its original

questionnaire and in its supplemental questionnaire of December 23,

1996, FARER failed to report any home market indirect selling expenses

or the absence of any indirect selling expenses.

Therefore, pursuant to section 776(A)(2)(A) of the Act, we have

employed the facts available for FAFER's home market indirect selling

expenses. As a proxy for the unreported home market indirect selling

expenses, we have added a percentage amount derived by deducting the

G&A amounts reported by FAFER from the SG&A value stated on FAFER's

unconsolidated financial statement, and then dividing the resulting

difference by the cost of goods sold (see, Analysis Memorandum, January

12, 1998).

Comment 6: FAFER notes that the Department in its preliminary

results found that the antidumping duties have been absorbed by FAFER

because the record did not permit a conclusion that the unaffiliated

purchaser in the United States will pay the ultimate assessed duty. The

Department invited interested parties to submit evidence to the

contrary within 15 days of the date of publication. FAFER states that

Charleroi U.S.A. received a letter from the unaffiliated purchaser

certifying that

[[Page 2964]]

company's irrevocable commitment to pay the antidumping duty at issue.

This letter was submitted (and served) in a timely manner, and should

put the issue to rest in FAFER's view. FAFER also requests that the

Department decrease the preliminary margin of 0.22% accordingly.

In rebuttal, the petitioners assert that the Department's

invitation to FAFER to submit new factual information after

verification is contrary to the Tariff Act of 1930, as amended, and the

Department's regulations requiring that the Department rely only on

verified information in its final results for this review. See 19

U.S.C. Sec. 1677m(i).

The petitioners believe that FAFER's submission purporting to

demonstrate that it did not absorb antidumping duties should be

rejected for the following reasons: (1) The document from the customer

to FAFER was dated September 29, 1997, only one day before it was filed

with the Department and, therefore, not part of the original terms of

sale; (2) the document is simply a one page letter, not notarized,

containing no indication that it is a contractual obligation; and (3)

the document cannot be relied upon because it has not been verified by

the Department.

In conclusion, the petitioners assert that the Department should

reject FAFER's submission for the reasons noted above, and reaffirm its

determination that FAFER and its affiliated importer absorbed

antidumping duties.

Department's Position: We agree with petitioners as to the results

of this duty absorption inquiry, but not as to the rationale. In our

preliminary results of review, at the request of petitioners, the

Department undertook a duty absorption inquiry. The Act provides for a

determination on duty absorption if the subject merchandise is sold in

the United States through an affiliated importer. In this case, the

reviewed firm sold through an ``affiliated'' importer within the

meaning of section 751(a)(4) of the Act. We preliminarily determined

that FAFER had absorbed the antidumping duties on one hundred percent

of its U.S. sales because we could not conclude from the record that

the unaffiliated purchasers in the United States had agreements to pay

the ultimately assessed duty.

We invited interested parties to submit evidence that the

unaffiliated purchasers in the United States have agreements to pay any

ultimately assessed duties charged to the affiliated importer,

Charleroi, USA. In a timely manner, FAFER submitted a statement from

the customer that he ``[would] irrevocably commit to make payments on

any antidumping duty with respect to [the] purchase of the [subject

merchandise], if such duty is assessed upon final determination by the

U.S. Department of Commerce in this 1995-1996 administrative review.''

See Attachment, dated September 29, 1997, to the Letter from FAFER to

the Secretary of Commerce, September 30, 1997.

Concerning the petitioners' objections to this response, as stated

above, we note that the submission from the respondent was timely filed

within the fifteen days following the publication of the preliminary.

Our regulations at 19 C.F.R. Sec. 351.31(b)(1) permit the Department to

ask for (and receive) information pertaining to an administrative

review at any time during a proceeding. Indeed, in an effort to obtain

more detailed information and a clarification of the respondent's

September 30, 1997 submission on duty absorption, we sent a

supplemental questionnaire to FAFER on November 26, 1997. The

petitioners had the opportunity to comment on the respondent's

supplementary response (see, Letter from petitioners to the U.S.

Department of Commerce, December 15, 1997).

After careful consideration of the evidence on the record, we have

determined that the submission from the respondent does not establish

that the unaffiliated customer will pay any ultimately assessed duty

(see, Certain Cut-to-Length Carbon Steel Plate from Belgium:

Preliminary Results of Antidumping Duty Administrative Review (62 FR

48213, 48217)) rendering the petitioners concerns about verification of

the submission moot. In addition, the petitioners concerns about the

timing of the alleged agreement between Charleroi U.S.A. and its

customer do not enter into our refusal to rely on the submission.

Petitioners have not stated any reasons why the timing of the alleged

agreement has a bearing on its enforceability. As for the petitioners'

objection to the fact that the ``letter'' was only one page and not

notarized, the Department does not consider length a criterion for

substance, and we note that the submission was properly certified

pursuant to Sec. 353.31(i) of the Department's regulations.

In the Preamble to 19 CFR part 351 et al., Antidumping Duties;

Countervailing Duties; Final Rule, we state that the Department did not

adopt in its final rules suggestions that it establish substantive

criteria regarding duty absorption because the Department ``will need

experience with absorption duty inquiries before it is able to

promulgate such criteria.'' Id. at p. 27318. In this spirit, we have

carefully considered the alleged agreement presented by Charleroi

U.S.A.'s customer that purportedly indicates that he will be

financially responsible for any duty assessed by the Department in this

administrative review. We have concluded, in this case, that the

evidence of record does not demonstrate the existence of an enforceable

agreement to pay the full amount of the assessed duties. The fact that

the customer has agreed ``to make payments on'' antidumping duties does

not provide for an enforceable agreement to pay all antidumping duties.

The alleged agreement does not state the exact number or amount of the

``payments'' the customer will make to the affiliated importer, nor

that the amounts paid by the unaffiliated purchaser will be for the

entire amount that is assessed by the Department. Finally, the

agreement contains no provision as to when the customer will make such

payments. Given these uncertainties, we cannot conclude that there is

an enforceable agreement for the unaffiliated purchaser to pay the

duties. Therefore, for these final results, we have continued to find

that antidumping duties have been absorbed by FAFER on one hundred

percent of its U.S. sales.

Results of Review

We determine that the following weighted-average margin exists:

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

Margin

Manufacturer/exporter Period of review (percent)

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

Fab. de Fer de Charleroi............. 08/01/95-07/31/96 13.75

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

The Department shall determine, and the Customs Service shall

assess, antidumping duties on all appropriate entries. Individual

differences between export price and normal value may vary from the

percentage stated above. The

[[Page 2965]]

Department will issue appraisement instructions directly to the Customs

Service.

Furthermore, the following deposit requirements will be effective

upon publication of this notice of final results of review for all

shipments of certain cut-to-length carbon steel plate from Belgium

within the scope of the order entered, or withdrawn from warehouse, for

consumption on or after the publication date, as provided by section

751(a)(1) of the Tariff Act: (1) The cash deposit rate for the reviewed

company will be the rate listed above; (2) for previously reviewed or

investigated companies not listed above, the 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 LTFV investigation, but the manufacturer is, the cash

deposit rate will be the rate established for the most recent period

for the manufacturer of the merchandise; and (4) for all other

producers and/or exporters of this merchandise, the cash deposit rate

of 13.31 percent, the ``all others'' rate, established in the LTFV

investigation, shall remain in effect until publication of the final

results of the next administrative review.

We will calculate importer-specific duty assessment rates on an ad

valorem basis against the entered value of each entry of subject

merchandise during the POR.

Notification of Interested Parties

This notice serves as a final reminder to importers of their

responsibility under 19 CFR Sec. 353.26 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 subsequent assessment

of double antidumping duties.

This notice also serves as a reminder to parties subject to

administrative protective order (APO) of their responsibility

concerning the disposition of proprietary information disclosed under

APO in accordance with 19 CFR Sec. 353.34(d). Timely written

notification of 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 sanctionable violation.

Timely written notification of the return/destruction of APO materials

or conversion to judicial protective order is hereby requested.

This administrative review and notice are in accordance with

Section 751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR

Sec. 353.22.

Dated: January 12, 1998.

Robert S. LaRussa,

Assistant Secretary for Import Administration.

[FR Doc. 98-1278 Filed 1-16-98; 8:45 am]

BILLING CODE 3510-DS-M