[Federal Register Volume 66, Number 167 (Tuesday, August 28, 2001)]
[Notices]
[Pages 45279-45283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21710]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-580-831 and A-580-834]
Notice of Amendment of Final Determinations of Sales at Less Than
Fair Value: Stainless Steel Plate in Coils From the Republic of Korea;
and Stainless Steel Sheet and Strip in Coils From the Republic of Korea
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of amendment to final antidumping duty determinations of
sales at less than fair value.
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SUMMARY: The Department of Commerce is amending its final
determinations in the antidumping duty investigations on stainless
steel plate in coils and stainless steel sheet and strip in coils from
the Republic of Korea in order to implement the report of the WTO
dispute settlement panel addressing these matters. Consistent with
section 129 of the Uruguay Round Agreements Act, which governs the
Department's actions following WTO panel reports, the Department has
revised the calculation of dumping margins in the above cases. We are
now amending the final determinations consistent with the revised
calculation of dumping margins.
EFFECTIVE DATE: August 28, 2001.
FOR FURTHER INFORMATION CONTACT: Carrie Blozy or Rick Johnson, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC
20230; telephone: (202) 482-0165 or (202) 482-3818, respectively.
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 to the Tariff Act of 1930, as amended (the Act)
by the Uruguay Round Agreements Act (URAA). In addition, unless
otherwise indicated, all citations to the Department's regulations are
references to the provisions codified at 19 CFR Part 351, 62 FR 27296
(May 19, 1997). Finally, citation to ``section 129'' refers to section
129 of the URAA, codified at 19 U.S.C. 3538.
Background
On March 31, and June 8, 1999, the Department of Commerce issued
final determinations of sales at less than fair value in the
antidumping investigations on stainless steel plate in coils from Korea
(Plate) and stainless steel sheet and strip in coils from Korea
(Sheet), respectively.\1\ Following affirmative injury determinations
issued by the United States International Trade Commission, the
Department issued antidumping duty orders on these products on May 21,
and July 27, 1999, respectively.\2\
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\1\ Notice of Final Determination of Sales at Less Than Fair
Value: Stainless Steel Plate in Coils from the Republic of Korea, 64
Fed. Reg. 15444 (Mar. 31, 1999) (Plate); and Notice of Final
Determination of Sales at Less Than Fair Value: Stainless Steel
Sheet and Strip in Coils from the Republic of Korea, 64 FR 30664
(June 8, 1999) (Sheet).
\2\ Antidumping Duty Orders: Certain Stainless Steel Plate in
Coils From Belgium, Canada, Italy, the Republic of Korea, South
Africa, and Taiwan, 64 Fed. Reg. 27756 (May 21, 1999); and Notice of
Antidumping Duty Order: Stainless Steel Sheet and Strip in Coils
From the United Kingdom, Taiwan and South Korea, 64 FR 40555 (July
27, 1999).
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On October 14, 1999, the Government of the Republic of Korea (GOK)
requested the establishment of a dispute settlement panel under the
auspices of the World Trade Organization (WTO) to examine various
aspects of the Department of Commerce's final affirmative
determinations of dumping in this cases. At the meetings of the WTO
Dispute Settlement Body (DSB) on November 19, 1999, the DSB determined
to establish such a panel, and the panel was composed on March 24,
2000.
On December 22, 2000, after full briefing and hearings, the panel
issued its report,\3\ which was adopted by the DSB on February 1, 2001.
On March 1, 2001, the United States announced its intention to
implement the recommendations and rulings in these cases. On April 18,
2001, pursuant to section 129(b)(2) of the URAA, the United States
Trade Representative requested that the Department of Commerce
(Department) issue a determination that would render the Department's
determination of dumping in the both the Sheet and Plate investigations
not inconsistent with the findings of the panel. On May 15, 2001, the
Department requested comments from interested parties. On May 24 and
31, 2001, the GOK and POSCO, respectively, submitted comments for the
Department to consider for purposes of implementation.
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\3\ United States--Anti-Dumping Measures on Stainless Steel
Plate In Coils and Stainless Steel Sheet and Strip From Korea, WT/
DS179/R, adopted on 1 February 2001.
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On July 5, 2001, the Department issued its Draft Implementation of
WTO Dispute Settlement Proceeding: Antidumping Duties on Stainless
Steel Plate in Coils and Stainless Steel Sheet and Strip in Coils from
Korea. The Department invited comment by interested parties in
accordance with section 129(d) of the URAA. We received case briefs
from POSCO and Petitioners on July 12, 2001. On July 17, 2001, POSCO
submitted its rebuttal comments and on July 24, 2001, Petitioners
submitted their rebuttal comments. At the request of respondent, a
hearing was held on July 25, 2001.
On August 15, 2001, the Department transmitted its revised
determinations in these cases to the United States Trade Representative
(USTR), pursuant to section 129(b)(2) of the URAA. On August 17, 2001,
the USTR informed the Department that it had conducted consultations
pursuant to section 129(b)(3) of the URAA, and that the revised
determinations bring the United States into conformity with the panel's
findings in the dispute. Accordingly, the USTR requested, pursuant to
section 129(b)(4) of the URAA, that the Department implement the
revised determinations for these investigations. Therefore, we are
hereby publishing notice of the implementation of our determination and
are amending the final determinations in the antidumping duty
investigations on Plate and Sheet from the Republic of Korea.
WTO Panel Findings and Conclusions
In its report, the dispute settlement panel found, inter alia, that
certain aspects of the methodology used to determine dumping in the
Plate and Sheet investigations were inconsistent with the Antidumping
Agreement. Specifically, the panel made the following findings:
1. With respect to the issue of whether the Antidumping Agreement
permits a currency conversion for certain sales in
[[Page 45280]]
the home market (local sales), the panel found that under the facts of
the Sheet investigation the United States acted inconsistently with
Article 2.4.1 of the Antidumping Agreement by performing an unnecessary
currency conversion.
The panel found that the evidence in the Sheet investigation
established that the Korean won amount ultimately paid by the customer
was determined by converting the U.S. dollar amount appearing on the
invoice into won at the rate of exchange prevailing on the date of
payment. The panel determined, therefore, that the dollar amount
appearing on the sales invoice was controlling, while the won amount
appearing on tax and certain shipment invoices and noted in POSCO's
accounts played no role in determining the amount the purchaser
ultimately would pay. Accordingly, the panel concluded, based upon the
evidence in the Sheet investigation, that the Department did not have a
basis to determine that the sales at issue were made in won.
2. With respect to the issue of whether the Antidumping Agreement
permits adjustment to export price and constructed export price for a
bad debt expense resulting from a customer's failure to pay for subject
merchandise, the panel found that under the facts of the Sheet and
Plate investigations the United States acted inconsistently with its
obligations under Article 2.4 of the Antidumping Agreement.
Specifically, the panel found that the extraordinary bad debt
expenses in these cases could not reasonably have been anticipated, and
thus taken into account by the exporter when determining the price to
be charged for the product in different markets or to different
customers. Accordingly, the panel concluded that the phrase
``differences in conditions and terms of sale'' of Article 2.4 cannot
permissibly be interpreted to encompass the unprecedented failure of a
customer to pay for certain sales. Similarly, for sales through the
importer, the panel determined that the costs ``incurred between
importation and resale'' cannot include costs that were unforeseeable
at the time the price was set. Therefore, the panel found that the
manner in which the Department measured the bad debt adjustment in
these cases was inconsistent with Article 2.4 of the Antidumping
Agreement.
3. With respect to multiple averaging periods, the panel found that
by using multiple averaging periods under the facts of the Sheet and
Plate investigations the United States acted inconsistently with its
obligation under Article 2.4.2 of the Antidumping Agreement to compare
a weighted average normal value with a weighted average of all
comparable export transactions.
In making its determination, the panel stated that Article 2.4.2
does not prohibit the use of multiple averaging periods. The panel
indicated there may be factual circumstances where the use of multiple
averaging periods could be appropriate in order to ensure that price
comparability is not affected by differences in the timing of sales
within the averaging periods in the home and export markets.
However, in the Plate and Sheet investigations, the panel found
that the Department's determination to use two averaging periods rested
solely upon the conclusion that the normal value in the latter phase of
the investigations, expressed in dollars, differed significantly from
the normal value in the earlier phase of the investigations. The panel
found that the Department's reliance upon significantly different
pricing alone was not a permissible determination of non-comparability.
The panel therefore concluded that the use of multiple averaging
periods in these investigations was inconsistent with the requirements
of Article 2.4.2.
Draft Implementation
Prior to issuance of the Draft Implementation, the GOK and POSCO
submitted comments to the Department on the steps necessary to
implement the panel's recommendation. The Department issued its Draft
Implementation to parties for comment on July 5, 2001. In its Draft
Implementation, the Department explained that it implemented the
panel's recommendation as follows:
1. With respect to the currency conversion issue, in the Sheet
investigation, the Department has recalculated the dumping margin,
using the dollar denominated price of local sales. Because the sales at
issue were determined to be dollar denominated transactions, currency
conversions from won into dollars are unnecessary and have not been
made for the recalculation of the dumping margin in the Sheet
investigation.
2. With respect to unpaid U.S. sales, in the Sheet and Plate
investigations, the Department has recalculated the dumping margins by
not taking into account the failure of the U.S. customer to make
payments for the sales at issue. To do so, the Department has removed
the adjustment for bad debt expense from its dumping margin
calculation. Instead, the Department has calculated credit expenses
pertaining to the sales at issue, and adjusted the margin calculation
accordingly.
To determine the credit expenses, the Department measures the time
period in which credit is extended to the customer by calculating the
time between shipment of the merchandise to the customer and payment by
the customer for such merchandise. For the sales at issue, the payment
dates are missing. To address the missing payment dates in the credit
expense calculation, the Department has used the average payment
experience for all U.S. sales as the facts available date for payment
of the sales at issue.
3. With respect to the issue of multiple averaging periods, the
Department has recalculated the dumping margins in the Sheet and Plate
investigations without dividing the period of each investigation into
two periods. In calculating the dumping margin for each investigation,
the Department has compared a weighted average normal value with a
weighted average of all comparable export transactions, as recommended
by the panel.
Comments From Interested Parties on Draft Implementation
Comment 1: Ministerial Errors
Respondent POSCO argues that the draft implementation of the Sheet
investigation contains a ministerial error that must be corrected by
the Department in its final results. Claiming that correction of this
error would result in a de minimis margin for POSCO, POSCO argues that
the Department should immediately rescind the Sheet antidumping order
on POSCO.
POSCO explains that the alleged error concerns the date of sale
used in the Department's computer program for U.S. CEP sales out of
inventory. POSCO notes that it made a small number of sales, in U.S.
channel two, out of POSAM's U.S. inventory during the period of
investigation (POI), which it reported to the Department as CEP sales.
POSCO classified the other U.S. channel two sales, which were shipped
directly from POSCO's plant to the customer, as export price (EP)
sales. For the CEP sales out of inventory, POSCO reported U.S. shipment
date, which was the same as POSAM's invoice date, as the date of sale.
POSCO states that in the final determination of the Sheet
investigation, the Department classified all of POSCO's sales through
U.S. channel two as CEP sales. Further, POSCO explains that in its
computer program in the final determination and draft WTO
implementation for Sheet the Department used language which
[[Page 45281]]
assigned, as the U.S. sale date for all U.S. channel two sales, the
earlier of the shipment date from Korea or POSAM's invoice date. Noting
that the date of shipment from Korea is always before POSAM's invoice
date, POSCO claims that for the CEP sales out of U.S. inventory, the
programming language is incorrect. Citing the Sheet Report on the
Verification of U.S. Sales by POSAM (April 2, 1999), POSCO maintains
that the Department verified that these sales were negotiated in the
United States and that the final terms of sale were set in the United
States by POSAM after the merchandise had arrived in inventory.
Consequently, POSCO argues that for the CEP sales out of inventory, the
appropriate date of sale is POSAM's invoice date-the sale date reported
by POSCO.
POSCO maintains that the Department's error was unintentional and
that this error, at the time of the original less-than-fair-value
determination, was insignificant to the margin analysis. POSCO
reiterates that because correction of this error would result in the
rescission of the Sheet dumping order on POSCO, the Department must
immediately correct the error. Moreover, POSCO argues that correction
of this error in the final implementation decision is no different than
a correction after court remand, which, POSCO claims, the Department
routinely makes. In support of their argument, POSCO cites AK Steel
Corp. et al. v. United States, Consol. Ct. No. 97-05-00865, where the
Department agreed with respondent's request to remand the case to allow
the Department to correct an inadvertent ministerial error in its
margin program and the court remanded the case back to the Department.
POSCO holds that it is well established that amendment after remand is
appropriate when the original determination contains an error of
inadvertence or mistakes, citing Badger-Powhatan, A Div. Of Figgie
Int'l v. United States, 633 F. Supp. 1364, 1368 (CIT 1986); Bohler-
Uddeholm Corp. v. United States, 946 F. Supp. 1003, 1007 (CIT 1996).
Moreover, citing NTN Bearing Corp. v. United States, 74 F.3d 1204, 1208
(Fed. Cir. 1995) citing Rhone Poulenc, Inc. v. United States, 899 F.2d
1185, 1191 (Fed. Cir 1990), POSCO states that the courts have
repeatedly held that, ``[it] is the duty of ITA to determine dumping
margins as ``accurately as possible.'''' Finally, POSCO argues that
failure to correct the alleged error would ``nullify and impair the
very benefits that the WTO Panel had intended to protect when it
rendered its decision in this case'' (citing United States--Antidumping
Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet
and Strip in Coils from Korea, WT/DS179/R, at 48.
Petitioners argue that the Department should not correct any
ministerial errors at this time. They assert that the Department may
not make any changes to the final margin program in the Sheet
investigation to correct for POSCO's alleged ministerial error because
the alleged error is outside the ``terms of reference,'' or scope of
review, of the WTO Panel. Specifically, Petitioners argue that none of
claims asserted by the GOK in its complaint to the WTO Panel involved
the proper date of sales for POSCO's CEP sales out of inventory. Citing
the WTO Panel Report at 7, Petitioners maintain that the alleged
error--whether correct or not--is therefore outside the WTO Panel's
terms of reference.
Additionally, Petitioners maintain that the Department should
dismiss POSCO's citation to CIT and Federal Circuit precedent
suggesting that the Department may make corrections to ministerial
errors after a court remand as inappropriate forum shopping. They state
that POSCO and the Korean Government invoked the jurisdiction of the
WTO, not U.S. Courts, as the forum for adjudicating the issues raised
in its complaint. Thus, they allege that POSCO cannot rely on the U.S.
Courts to support its claim for relief where that claim for relief is
outside the jurisdiction of the WTO Panel. Moreover, Petitioners
suggest that there is an equal amount of authority at the CIT stating
that the Department may not correct late-submitted ministerial errors.
In support of their argument, Petitioners cite to Koyo Seiko v. United
States, 746 F. Supp. 1108, 1110 (CIT 1990) and Hyster Co. v. United
States, 858 F. Supp. 202 (CIT 1994). Petitioners maintain that this
case is analogous to Torrington Co. v. United States, 1998 CIT Lexis
15, Slip Op. 98-24 at 3, where the court rejected a party's request to
correct an alleged ministerial error that was first raised in comments
on the Department's draft remand results. Petitioners note that POSCO
is raising the alleged ministerial error over two years after the
Department's final determinations in these cases and continue that the
Court's interest in finality is of critical importance in these cases.
Petitioners also claim that under CIT precedent (citing Zenith Elecs.
Corp. v. United States, 699 F. Supp. 296, 298 (CIT 1988)), the
Department may not make corrections for ministerial errors without the
Court's permission. Petitioners argue that at a minimum, this case
could be viewed as requiring parallel treatment at the WTO. Petitioners
hold that because POSCO did not notify the Department of its alleged
ministerial error in the five-day allotted period, or within the terms
of reference of the WTO panel, POSCO is without remedy and may not now
seek to have the Department amend its final determination for Sheet for
the alleged error.
Petitioners also allege a ministerial error in the programs for
Plate and Sheet. Specifically, Petitioners maintain that although it is
the Department's standard practice to separately calculate average net
prices for CEP and EP sales, in both final determinations the
Department calculated a single net price for both CEP and EP sales.
Department's Position: We disagree with POSCO that the alleged
ministerial errors are properly the subject of this implementation.
This implementation/determination is being conducted under section
129(b)(2) of the Uruguay Round Agreements Act, which authorizes the
Department to ``issue a determination in connection with the particular
proceeding that would render the administering authority's action
described in paragraph (1) not inconsistent with the findings of the
panel or the Appellate Body.'' In this regard, we note that the GOK did
not allege the errors in question as part of its panel request, and the
panel therefore had no basis to make a ruling with respect to them. Nor
were the errors alleged by POSCO and Petitioners made in implementing
the panel's findings. Thus, the Department believes that this
determination should be restricted to those areas of the final
determination which were found by the panel to be inconsistent with the
Antidumping Agreement.
Moreover, these ministerial error allegations by POSCO and
Petitioners were made at an extremely late point in this process. The
Department notes that its final margin calculation, which was issued to
the parties over two years ago, contained the calculation alleged by
POSCO to be a ministerial error concerning the proper date of sale for
POSCO's U.S. CEP sales out of inventory, as well as the calculation
alleged by Petitioners to be a ministerial error concerning calculation
of a single net price for CEP and EP sales. In accordance with the
Department's regulations POSCO and Petitioners had until five days
after the release of disclosure documents for the Sheet final
determination to file a ministerial error allegation on these issues
with the Department (19 CFR 351.224(c)(2)). These parties did not do
so. We are concerned that consideration of these
[[Page 45282]]
allegations at this point in the process would effectively be allowing
time for such allegations far exceeding the time granted to other
parties in these and other proceedings. That there happens to be a
redetermination pursuant to section 129(b)(2) is mere happenstance. In
the vast majority of investigations and reviews, there would be no
opportunity for parties to raise an issue of ministerial error two
years after the fact. We note that in AK Steel, which POSCO cites in
support of its case, while the Department did not contest the
allegation of error, correction of that error was ultimately undertaken
only pursuant to an order from the Court. Moreover, in other cases the
court has declined to accept ministerial error allegations made for the
first time after extensive litigation. See Hyster Co. v. U.S., 858
F.Supp. 202 (CIT 1994). Here, POSCO and Petitioners, having allowed the
regulatory remedy to expire, are asking the Department to address
allegations of ministerial error sua sponte several years after the
investigation was completed.\4\
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\4\ Even if we did correct ministerial errors such as these, it
would be pursuant to a different statutory authority. Therefore,
this is not different from entertaining such a claim sua sponte two
years after the fact.
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We are also concerned that allowing parties to raise new issues at
this point in the process potentially would be unfair, as parties'
comments and views on issues, including the Petitioners' views on
appealing panel decisions, may have been affected by the allegations,
had they been made known earlier. As noted above, section 129(b)(2)
determinations have a limited purpose; the fact that the Department
happens to be making a determination under that section on issues
unrelated to the allegations of error does not provide an excuse for a
wholesale review of all issues in the underlying case. We note,
however, that correction of these ministerial errors would result in a
margin of 2.09 percent, making these allegations largely
inconsequential. We note, further, that in the context of the first
review, which is currently being conducted, both parties will have an
opportunity to fully air all allegations of ministerial error so that
any such errors are not reflected in the amount of duties ultimately
assessed against POSCO's entries.
Consequently, we have not made corrections to our calculations for
either POSCO's or Petitioners' alleged ministerial errors for purposes
of this determination.
Comment 2. Treatment of Bad Debt
In their case brief, Petitioners argue that the Department failed
to take into account non-payment by a certain U.S. customer.
Petitioners maintain that the Department's methodology was wrong and
sets a ``terrible'' precedent. Citing the Department's Antidumping
Manual, Petitioners claim that proof of payment of a transaction is a
critical component to the Department's determination of the legitimacy
of a particular transaction. Citing Issues and Decision Memorandum for
the Administrative Reviews of Antifriction Bearings (other than tapered
roller bearings) and parts thereof from France, Germany, Italy, Japan,
Romania, Singapore, Sweden, and the United Kingdom--May 1, 1998 through
April 30, 1999 (Comment 26); Notice of Final Determination of Sales at
Less Than Fair Value: Large Newspaper Printing Presses and Components
Thereof, Whether Assembled or Unassembled, From Japan, 61 FR 38139,
38141 (July 23, 1996); and Final Results of Antidumping Duty
Administrative Review: Porcelain-on-Steel Cooking Ware from Mexico, 58
FR 43327 (August 16, 1993), Petitioners argue that in many other cases,
the Department has considered the differences between nominal invoice
prices and actual payment amounts to represent de facto discounts to
the nominal prices. Maintaining that in this case all parties have
recognized that non-payment resulted in a cost, Petitioners declare
that the Department must account for the alleged ``involuntary
discount'' given by POSCO to the ABC Company for the unpaid sales. To
this end, Petitioners suggest that the Department consider the unpaid
sales prices as a discount allocated to, and deducted from, the prices
for all paid sales made to customer ABC Company.
Petitioners argue that if the Department does not make an
adjustment for the unpaid sales in the investigations, then the
Department must recognize the bad debt as an SG&A expense in the on-
going first administrative reviews of the Plate and Sheet orders.
POSCO rebuts that the WTO Panel instructed that the unpaid sales
cannot be treated as direct selling expenses. POSCO claims that under
the Department's regulations, a discount is a direct selling expense.
Thus, POSCO argues that under Petitioners' proposed methodology for
dealing with the unpaid sales, the unpaid sales would continue to be
treated as a direct selling expense. POSCO continues that any
methodology which continues to treat the unpaid sales as a direct
selling expense would constitute an abrogation of the United States'
commitments under the WTO. Citing the Panel Report at 30, POSCO submits
that the essence of the Panel Report was that a difference in the
conditions and terms of sale ``could not have been anticipated and thus
taken into account by the exporter (POSCO) when determining the price
to be charged for the product in different markets or to different
customers.'' POSCO argues that in this case, unlike the other two cases
cited by Petitioners, POSCO did not have knowledge of the financial
situation of the customer (citing Panel Report at 30) and therefore had
a reasonable expectation of payment from the ABC Company. Moreover,
POSCO claims that because the unpaid sales had specified terms of
payment, this is further evidence that POSCO expected to be paid. POSCO
concludes that the Department's draft implementation did not ignore the
unpaid sales, but rather, consistent with its obligations under the
WTO, ``acknowledged that, in an investigation, the Department cannot
adjust U.S. price for the unanticipated bankruptcy of a U.S.
customer.'' Thus, POSCO requests that the Department reject
Petitioners' suggested treatment of the unpaid sales as a discount.
Moreover, POSCO claims that the Department has no basis for making an
adjustment for the bad debt in the ongoing administrative reviews of
Plate and Sheet since, according to POSCO, the Department verified in
both cases that POSAM wrote the sales off at the end of 1997. POSCO
also notes that the decision of what methodology to apply for the Plate
and Sheet reviews falls outside the scope of the implementation
decision.
Department's Position: We disagree with Petitioners' proposed
methodology to treat the bad debt as a de facto or ``involuntary''
discount. The panel found that the extraordinary bad debt expenses in
these cases could not reasonably have been anticipated. Thus, under the
panel's view of the facts of this case, no adjustment for the expense
incurred by POSAM as a result of nonpayment, either as a discount or as
a bad debt expense, would be permissible. Accordingly, we are not
making an adjustment to account for the bad debt incurred by POSCO's
affiliate, POSAM, for the sales at issue. Normally we account for a
respondent's bad debt based on the historical experience of a company,
similar to our treatment of warranty expenses. However, in this case we
found that POSAM did not have a bad debt account and did not find
evidence that POSAM's customers had ever before defaulted on payment.
[[Page 45283]]
Therefore, in accordance with the WTO panel report, the Department has
not adjusted for the unpaid sales. Moreover, the issue of how to
account for bad debt incurred by POSCO during the administrative review
period is outside the scope of the implementation decision and not
properly before the Department.
Comment 3: Calculation of Credit Period
Petitioners argue that if the Department continues to treat the
unpaid sales as paid sales, then the Department should impute a longer
credit period. Petitioners note that the Department's methodology in
the draft implementation, which was to impute the average credit period
for all paid sales to the sales at issue, results in a shorter credit
period for the unpaid sales than many of POSCO's sales where the
customer actually paid. They maintain that the true credit period for
the unpaid sales is infinite, and that, as such, the hypothetical
payment date cannot be earlier than a date on which the sales remain
actually unpaid.
POSCO maintains that the application of an average credit period as
the facts available date of payment for the unpaid sales is appropriate
and consistent with the panel's findings. POSCO claims that the
Department does not have the authority to extend the credit period for
these sales beyond the record in the case, as proposed by Petitioners.
Moreover, POSCO argues that application of Petitioners' proposed
methodology, which would extend the credit period beyond the terms and
conditions of the sale, would result in the very distortion that the
Panel found to be inconsistent with the WTO. Thus, POSCO concludes that
the Department must continue to use average credit period.
Department's Position: We disagree with Petitioners that the true
credit period for these sales is infinite. The Department found in both
the Plate and Sheet investigations that POSAM wrote off the unpaid
sales at the end of 1997. Based on this action, POSCO recognized that
payment would not be received for this sale. However, consistent with
WTO Panel report, we are not taking into account the failure of the
U.S. customer to make payments for the sales at issue. Therefore, since
POSAM wrote-off the sales within the period of investigation, as non-
adverse facts available, we applied a credit period based on the
average credit period extended by POSCO to customers for which POSCO
expected payment. Use of an average credit period, which is consistent
with POSCO's average terms of sale during the POI, most accurately
reflects the true price of the merchandise at issue at the time of
sale.
Implementation of the Dispute Settlement Panel Report
To implement the Panel's recommendations, the Department has
recalculated the dumping margins in the Sheet and Plate investigations
as follows:
1. With respect to the currency conversion issue, in the Sheet
investigation, the Department has recalculated the dumping margin,
using the dollar denominated price of local sales. Because the sales at
issue were determined to be dollar denominated transactions, currency
conversions from won into dollars are unnecessary and have not been
made for the recalculation of the dumping margin in the Sheet
investigation.
2. With respect to unpaid U.S. sales, in the Sheet and Plate
investigations, the Department has recalculated the dumping margins by
not taking into account the failure of the U.S. customer to make
payments for the sales at issue. To do so, the Department has removed
the adjustment for bad debt expense from its dumping margin
calculation. Instead, the Department has calculated credit expenses
pertaining to the sales at issue, and adjusted the margin calculation
accordingly.
To determine the credit expenses, the Department measures the time
period in which credit is extended to the customer by calculating the
time between shipment of the merchandise to the customer and payment by
the customer for such merchandise. For the sales at issue, the payment
dates are missing. Moreover, the Department found that POSAM wrote-off
the sales within the period of investigations for Plate and Sheet.
Therefore, to address the missing payment dates in the credit expense
calculation, the Department has used the average payment experience for
all U.S. sales as the facts available date for payment of the sales at
issue.
3. With respect to the issue of multiple averaging periods, the
Department has recalculated the dumping margins in the Sheet and Plate
investigations without dividing the period of each investigation into
two periods. In calculating the dumping margin for each investigation,
the Department has compared a weighted average normal value with a
weighted average of all comparable export transactions, as recommended
by the panel.
Amended Final Results
As a result of the changes to the calculations, we determine that,
for POSCO, a 2.49 percent dumping margin exists in the Sheet
investigation, and a 6.08 percent dumping margin exists in the Plate
investigation. The dumping margin for Inchon in the Sheet investigation
remains zero. The ``All Others'' rate is 2.49 percent in the Sheet
investigation and 6.08 percent in the Plate investigation.
Continuation of Suspension of Liquidation
On or after the date of publication of this notice in the Federal
Register, U.S. customs officers must require, at the same time as
importers would normally deposit estimated duties, the cash deposits
listed below for the subject merchandise. The ``All Others'' rate
applies to all exporters of subject merchandise not specifically listed
below. These suspension of liquidation instructions will remain in
effect until further notice. The revised final weighted-average margins
for Plate in Coils are as follows:
------------------------------------------------------------------------
Weighted-
average
Exporter/ manufacturer margin
percentage
------------------------------------------------------------------------
Pohang Iron & Steel Co., Ltd............................... 6.08
All others................................................. 6.08
------------------------------------------------------------------------
The revised final weighted-average margins for Sheet and Strip in
Coils are as follows:
------------------------------------------------------------------------
Weighted-
average
Exporter/ Manufacturer margin
percentage
------------------------------------------------------------------------
Pohang Iron & Steel Co., Ltd............................... 2.49
Inchon Iron & Steel Co., Ltd............................... 0.00
Taihan Electric Wire Co., Ltd.............................. 58.79
All others................................................. 2.49
------------------------------------------------------------------------
Since the weighted average margin percentage for Inchon continues
to be zero, Inchon continues to be excluded from the antidumping duty
order on stainless steel sheet and strip in coils from the Republic of
Korea.
These amended final determinations are issued and published in
accordance with sections 735(d) and 777(i)(1) of the Act, and section
129(c)(2)(A) of the URAA.
Dated: August 22, 2001.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 01-21710 Filed 8-27-01; 8:45 am]
BILLING CODE 3510-DS-P