Daily Rules, Proposed Rules, and Notices of the Federal Government
On October 24, 1997, the Department entered into an agreement with the Government of Ukraine which suspended the antidumping duty investigation on certain cut-to-length carbon steel plate (CTL plate) from Ukraine.
On February 17, 2006, based on the evidence of economic reforms to that date, the Department revoked Ukraine's status as a non-market economy country under section 771(18)(B) of the Act, effective on February 1, 2006. Based on a request by certain Ukrainian producers of CTL plate, we are converting the current non-market economy suspension agreement to a market economy agreement. On August 5, 2008, representatives of OJSC Alchevsk Iron & Steel Works, Azovstal Iron & Steel Works, and Ilyich Iron & Steel Works (collectively the “Ukrainian CTL plate producers”) initialed a proposed, revised suspension agreement. We invited interested parties to comment on the proposed agreement. We received no comments.
On September 29, 2008, the revised Suspension Agreement was signed by
For a complete description of the scope of the agreement,
The Department consulted with the parties to the proceeding and, in accordance with section 734(b) of the Act, we have determined that the agreement will eliminate completely sales at less than fair value of imported subject merchandise. Moreover, in accordance with section 734(d) of the Act, we find that the agreement is in the public interest, and that the agreement can be monitored effectively.
The Administrative Protective Orders (APOs) the Department granted in the original investigation segment of this proceeding remain in place. While the investigation is suspended, parties subject to those APOs may retain, but may not use, information received under those APOs. All parties wishing access to business proprietary information submitted during the administration of the 2008 Suspension Agreement must submit new APO applications, using the Department's current application, Form ITA-367(2.08). An APO for the administration of the 2008 Suspension Agreement will be placed on the record within five days of the date of publication of this notice in the
Business proprietary information released under APO in the 1997
We are publishing this notice in accordance with section 734(f)(1)(A) of the Act and 19 CFR 351.208(g)(2).
Pursuant to section 734(b) of the Tariff Act of 1930, as amended (19 U.S.C. § 1673c(b)) (the “Act”), and 19 CFR 351.208 (the “Regulations”), the U.S. Department of Commerce (the “Department”) and the signatory producers/exporters of certain cut-to-length carbon steel plate from Ukraine (the “Signatories”) enter into this suspension agreement (the “Agreement”). As of the effective date, this Agreement supersedes the suspension agreement entered into by the Department and the Government of Ukraine on October 24, 1997. By agreement of the Parties, the October 24, 1997 suspension agreement shall cease to have force or effect as of the effective date of this Agreement.
For purposes of this Agreement, the products covered are certain cut-to-length carbon steel plate, as described in Appendix A.
The signatory producers/exporters collectively are the producers and exporters in Ukraine that, during the most recently completed calendar year, accounted for substantially all (not less than 85 percent) of the subject merchandise imported into the United States, as provided in the Department's regulations. The Department may at anytime during the period of the Agreement require additional producers/exporters in Ukraine to sign the Agreement in order to ensure that not less than substantially all imports into the United States are covered by the Agreement.
In reviewing the operation of the Agreement for the purpose of determining whether this Agreement has been violated or is no longer in the public interest, the Department will consider imports into the United States from all sources of the merchandise described in Section A of the Agreement. For this purpose, the Department will consider factors including, but not limited to, the following: volume of trade, pattern of trade, whether or not the reseller is an original equipment manufacturer, and the reseller's export price (“EP”).
On and after the effective date of the Agreement, each signatory producer/exporter individually agrees to make any necessary price revisions to eliminate completely any amount by which the normal value (“NV”) of this merchandise exceeds the U.S. price of its merchandise subject to the Agreement. For this purpose, the Department will determine the NV in accordance with section 773(e) of the Act and U.S. price in accordance with section 772 of the Act.
(1) For the period from the effective date of this Agreement through the release of the first NVs, each signatory producer/exporter agrees not to sell its merchandise subject to this Agreement in the United States.
(2) For all sales occurring on and after the date of issuance of the first NVs, each signatory producer/exporter agrees not to sell its merchandise subject to this Agreement to any unaffiliated purchaser in the United States at prices that are less than the NV of the merchandise, as determined by the Department. These NVs shall apply to sales occurring during the semi-annual period (
(3) Normally, preliminary NVs for the January through June semi-annual period will be provided to the parties on November 20 and the final NVs will be provided to the parties on December 20. Normally, the preliminary NVs for the July through December semi-annual period will be provided to the parties on May 20 and the final NVs will be provided to the parties on June 20.
Each signatory producer/exporter will supply to the Department all information that the Department decides is necessary to ensure that the producer/exporter is in full compliance with the terms of the Agreement. As explained below, the Department will provide each signatory producer/exporter a detailed request for information and prescribe a required format and method of
The Department will require each producer/exporter to report, in electronic form in the prescribed format and using the prescribed method of data compilation, each sale of the merchandise subject to the Agreement, either directly or indirectly to unaffiliated purchasers in the United States, including each adjustment applicable to each sale, as specified by the Department.
Each signatory producer/exporter requesting NVs as of the effective date of the Agreement through December 31, 2008 will have submitted sales data, covering the period from July 1, 2007 to December 31, 2007, prior to the effective date of this Agreement. Each signatory producer/exporter requesting NVs to be effective from January 1, 2009 to June 30, 2009 will have submitted sales data, covering the period from January 1, 2008 to June 30, 2008, prior to the effective date of this Agreement. After the effective date of this Agreement, the first report of sales data shall be submitted to the Department, in electronic form (
Producers/exporters must request NVs for all subject merchandise that will be sold in the United States. For those products for which the producer/exporter is requesting NVs, the Department will require each producer/exporter to report: its actual cost of manufacturing; selling, general and administrative (“SG&A”) expenses; and profit data on a semiannual basis, in the prescribed format and using the prescribed method of data compilation. As indicated in Appendix B, profit will be reported by the producers/exporters on a semiannual basis. Each such producer/exporter also must report anticipated increases in production costs in the semiannual period in which the information is submitted resulting from factors such as anticipated changes in production yield, changes in production processes, changes in production quantities or changes in production facilities.
Each signatory producer/exporter requesting NVs as of the effective date of the Agreement through December 31, 2008 will have submitted cost data, covering the period from July 1, 2007 to December 31, 2007, prior to the effective date of this Agreement. Each signatory producer/exporter requesting NVs for the period January 1, 2009 to June 30, 2009 will have submitted cost data, covering the period from January 1, 2008 to June 30, 2008, prior to the effective date of this Agreement. After the effective date of this Agreement, the first report of cost data shall be submitted to the Department not later than February 14, 2009, and shall contain the specified cost data covering the period July 1, 2008 to December 31, 2008. Each subsequent report shall be submitted to the Department not later than August 14 and February 14 of each year, and each report shall contain the specified information for the semiannual period ending 45 days prior to the due date.
If the Department determines that the NV it calculated for a previous semiannual period was erroneous because the reported costs for that period were inaccurate or incomplete, or for any other reason, the Department may adjust the NV in a subsequent period or periods, unless the Department determines that Section F of the Agreement applies.
Each producer/exporter agrees to permit full verification of all cost and sales information semiannually, or more frequently, as the Department deems necessary.
Producers/exporters agree not to circumvent the Agreement. In accordance with the dates set forth in section D(1) of this Agreement, producers/exporters will submit a written statement to the Department certifying that the sales reported herein were not, or are not part of or related to, any bundling arrangement, on-site processing arrangement, discounts/free goods/financing package, swap or other exchange where such arrangement is designed to circumvent the basis of the Agreement.
Where there is reason to believe that such an arrangement does circumvent the basis of the Agreement, the Department will request producers/exporters to provide within 15 days all particulars regarding any such arrangement, including, but not limited to, sales information pertaining to covered and non-covered merchandise that is manufactured or sold by producers/exporters. The Department will accept written comments, not to exceed 30 pages, from all parties no later than 15 days after the date of receipt of such producer/exporter information.
If the Department, after reviewing all submissions, determines that such arrangement circumvents the basis of the Agreement, it may, as it deems most appropriate, utilize one of two options: (1) The amount of the effective price discount resulting from such arrangement shall be reflected in the NV in accordance with section D(3) of this Agreement, or (2) the Department shall determine that the Agreement has been violated and take action according to the provisions under section F of this Agreement.
The Department may reject any information submitted after the deadlines set forth in this section or any information that it is unable to verify to its satisfaction. If information is not submitted in a complete and timely fashion or is not fully verifiable, the Department may calculate NV, and/or U.S. price based on facts otherwise available, as it determines appropriate, unless the Department determines that section F of this Agreement applies.
(1) The Department may make available to representatives of each interested party to the proceeding, under appropriately drawn administrative protective orders, business proprietary information submitted to the Department during the reporting period as well as the results of its analysis under section 777 of the Act.
(2) For the sales period beginning on January 1, 2009, the Department will disclose to each producer/exporter the preliminary results and methodology of the Department's calculations of its NVs not later than November 20, 2008. At that time, the Department may also make available such information to the interested parties to the proceeding in accordance with this section.
(3) Normally, not later than May 20 and November 20 of each ensuing sales period, the Department will disclose to each producer/exporter the preliminary results and methodology of the Department's calculations of its NVs. At that time, the Department may also make available such information to the interested parties to the proceeding, in accordance with this section.
(4) Not later than 7 days after the date of disclosure under section E(2) and E(3) of this Agreement, the parties to the proceeding may submit written comments to the Department, not to exceed 15 pages. Parties may submit rebuttal briefs within five days after the time limit for filing the aforementioned written comments. After reviewing these submissions, the Department will provide to each producer/exporter its NVs as provided in section C(2) of this Agreement. In addition, the Department may provide such information to interested parties as specified in this section.
If the Department determines that the Agreement is being or has been violated or no longer meets the requirements of section 734(b) or (d) of the Act, the Department shall take action it determines appropriate under section 734(i) of the Act and the applicable regulations.
In entering into the Agreement, the signatory producers/exporters do not admit that any sales of merchandise subject to the Agreement have been made at less than fair value.
Termination of the suspended investigation will be considered in accordance with the five-year review provisions of section 351.218 of the Department's regulations.
Any producer/exporter may withdraw from the Agreement at any time upon notice to the Department. Withdrawal shall be effective 60 days after such notice is given to the Department. Upon withdrawal, the
For purposes of the Agreement, the following definitions apply:
(1) “U.S. price” means the EP or constructed export price (“CEP”) at which merchandise is sold by the producer or exporter to the first unaffiliated person in the United States, including the amount of any discounts, rebates, price protection or ship and debit adjustments, and other adjustments affecting the net amount paid or to be paid by the unaffiliated purchaser, as determined by the Department under section 772 of the Act.
(2) “Normal value” means the constructed value (“CV”) of the merchandise, as determined by the Department under section 773 of the Act and the corresponding sections of the Department's regulations, and as adjusted in accordance with Appendix B to this Agreement.
(3) “Producer/Exporter” means (1) the foreign manufacturer or producer, (2) the foreign producer or reseller which also exports, and (3) the affiliated person by whom or for whose account the merchandise is imported into the United States, as defined in section 771(28) of the Act.
(4) “Date of sale” means the date of the invoice as recorded in the exporter's or producer's records kept in the ordinary course of business, unless the Department determines that a different date better reflects the date on which the exporter or producer establishes the material terms of sale, as determined by the Department under its regulations.
The effective date of this Agreement is November 1, 2008.
For the Ukrainian Producers/Exporters:
For purposes of this Agreement, the products covered are hot-rolled iron and non-alloy steel universal mill plates (
The cost information reported to the Department that will form the basis of the NV calculations for purposes of the Agreement must be:
• Comprehensive in nature and based on a reliable accounting system (
• Calculated on a semiannual weighted-average basis of the plants or cost centers manufacturing the product;
• Based on fully-absorbed costs of production, including any downtime;
• Valued in accordance with generally accepted accounting principles; and
• Reflective of appropriately allocated common costs so that the costs necessary for the manufacturing of the product are not absorbed by other products.
Additionally, a single figure should be reported for each cost component making up the cost of production.
COM is reported by major cost category and for major stages of production. Weighted-average costs are used for a product that is produced at more than one facility, based on the product's cost at each facility and relative production quantities.
Direct materials costs include the acquisition costs of all materials that are identified as part of the finished product and may be traced to the finished product in an economically feasible way. In contrast to indirect materials, direct materials are applied and assigned directly to a finished product. Direct materials costs should include transportation charges, import duties, and other expenses normally associated with obtaining the materials that become an integral part of the finished product.
Direct labor costs are the labor costs identified with a specific product. These costs are not allocated among products except when two or more products are produced at the same cost center. Direct labor costs should include salary, bonus and overtime pay, training expenses, and all fringe benefits. Any contracted-labor expense should reflect the actual billed cost.
Variable manufacturing overhead costs include those production costs, other than direct materials or direct labor, that generally vary in total with changes in the volume of merchandise produced at a given level of operations. Variable manufacturing overhead costs may include indirect materials (
Fixed manufacturing overhead costs include those production costs that generally do not vary in total with changes in the volume of merchandise produced at a given level of operations. Fixed manufacturing overhead costs may include the costs incurred for building or equipment rental, depreciation, supervisory labor paid on a salary basis, plant property taxes, and factory administrative costs. In addition, fixed manufacturing overhead costs include research and development (“R&D”) costs that relate specifically to the subject merchandise.
COP is equal to the sum of direct materials, direct labor, variable manufacturing overhead, and fixed manufacturing overhead (
SG&A expenses are those expenses incurred for the operation of the corporation as a whole and not directly related to the manufacture of a particular product. They include corporate general and administrative expenses, financing expenses, and general research and development expenses. Additionally, direct and indirect selling expenses incurred in the HM for sales of the product under investigation are included. Such expenses are allocated to COM using a ratio of SG&A costs.
CV is equal to the sum of materials, labor and overhead (COM) and SG&A expenses plus profit in the comparison market and the cost of packing for exportation to the United States.
NVs (for purposes of the Agreement) are calculated by adjusting the CV and are provided for both EP and CEP transactions. In effect, any expenses uniquely associated with the covered products sold in the HM are subtracted from the CV, and any such
“Export Price”—Generally, a U.S. sale is classified as an EP sale when the first sale to an unaffiliated person occurs before the goods are imported into the United States. In cases where the foreign manufacturer knows or has reason to believe that the merchandise is ultimately destined for the United States, the manufacturer's sale is the sale subject to review. If, on the other hand, the manufacturer sold the merchandise to a foreign trader without knowledge of the trader's intention to export the merchandise to the United States, then the trader's first sale to an unaffiliated person is the sale subject to review. For EP NVs, the CV is adjusted for movement costs and differences in direct selling expenses such as, commissions, credit, warranties, technical services, advertising, and sales promotion.
“Constructed Export Price”—Generally, a U.S. sale is classified as a CEP sale when the first sale to an unaffiliated person occurs after importation. However, if the first sale to an unaffiliated person is made by a person in the United States affiliated with the foreign exporter, CEP applies even if the sale occurs prior to importation, unless the U.S. affiliate performs only clerical functions in connection with the sale. For CEP NVs, the CV is adjusted similar to EP sales, with differences for adjustment to U.S. and HM indirect selling expenses.
Home market direct selling expenses are expenses that are incurred as a direct result of a sale. These include such expenses as commissions, advertising, discounts and rebates, credit, warranty expenses, freight costs, etc. Certain direct-selling expenses are treated individually. They include:
• Commission expenses,
• Credit expenses,
• Movement expenses,
U.S. direct selling expenses are the same as HM direct selling expenses except that they are incurred for sales in the United States. Movement expenses are additional expenses associated with importation into the United States, which typically include: U.S. inland freight and insurance expenses; U.S. brokerage, handling and port charges; U.S. Customs duties, U.S. warehousing; and international freight and insurance.
U.S. indirect selling expenses include general fixed expenses incurred by the U.S. sales subsidiary or affiliated exporter for sales to the United States and may also include a portion of indirect expenses incurred in the HM for export sales, if those expenses are associated with commercial activity that takes place in the United States.
The EP and CEP NVs are calculated as follows: