[Federal Register Volume 63, Number 12 (Tuesday, January 20, 1998)]
[Notices]
[Pages 2959-2965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1278]


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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