IN THE MATTER OF:

Oil Country Tubular Goods from Mexico; Final Determination of Sales At Less Than Fair Value
(Continued)

B. Calculation of General and Administrative (G&A) Expense

1. Arguments of the Participants

TAMSA

TAMSA challenges the Department’s decision to reject TAMSA’s calculation of G&A expenses based on its audited, verified, full-year 1993 data, and to substitute therefor the unaudited and unverified half-year 1994 data, because such rejection was "in direct conflict with established Department precedent and was unjustified." ²⁸²

TAMSA again cites the Furfuryl Alcohol and Canned Pineapple cases as a reaffirmation of the Department’s policy of reliance on audited data (in these instances, the Department rejected the 1994 data because it was unaudited).

TAMSA also asserts that the Department did not verify the 1994 G&A expense data during the Veracruz verification and thus it did not review potentially important adjustments to that data. ²⁸³

In TAMSA’s view, it was procedurally unfair for the Department to "ignore" the 1994 data at verification and then later to decide to use this ("unaudited, unverified, unadjusted, and thus inaccurate") data. TAMSA considers that the Department should have put TAMSA on notice that it might decide to use the 1994 data, which would have allowed TAMSA to submit for review various adjustments to that data.

As to the issue of adjustments, TAMSA asserts that the Department "refused to make any adjustments," ²⁸⁴ making particular reference to the fact that indirect selling expenses were already separately accounted for in the dumping calculation and, therefore, such expenses should have been eliminated from the 1994 data to avoid double counting.

The Department

In its brief to the Panel, the Department responds to the arguments made by TAMSA:

It was reasonable for the Department to reject the 1993 data and to use 1994 data which was more representative of the POI. ²⁸⁵

Despite TAMSA’s allegation, the 1994 data was verified. ²⁸⁶ It would have been inappropriate for the verification team to signal to TAMSA that the 1994

data would ultimately be used, and TAMSA had no procedural right to such a statement. ²⁸⁷ BIA played no role in the selection of the 1994 data for G&A expenses ²⁸⁸ and The Department made no adjustment to the 1994 data for indirect selling expenses because TAMSA declined to submit data in support of that adjustment. On the last issue noted above, the Department concedes that "the elimination of indirect expenses from G&A data is routinely done." ²⁸⁹

However, the Department considers it settled law that "because respondents seeking adjustments are the parties with access to the data pertaining to adjustments, it is their burden to provide the information necessary to establish the claim for such adjustments." ²⁹⁰

The Department notes, in this instance, that TAMSA had previously submitted an indirect selling expense factor in support of an adjustment to its G&A submission based on the 1993 data. ²⁹¹

However, TAMSA "chose not to submit for verification a comparable breakout of full year 1994 indirect selling expenses when it presented its 1994 annual unconsolidated trial balance at the Veracruz verification." ²⁹²

The Department then makes the point that as is generally the case for adjustments which benefit respondents and which are not specified by statute, a failure to submit the information simply means that the Department will not make the adjustment. There is no resort to BIA as there would be in the case of information required by the statue. ²⁹³

In the Department’s view, TAMSA’s failure to provide the optional indirect selling expense breakout was a "head-in-the-sand" avoidance strategy. ²⁹⁴

North Star

North Star’s brief to the Panel supports the Department’s positions with respect to the rejection of the unrepresentative 1993 data as the basis for calculating POI G&A expense, the selection of the 1994 data for that purpose, and the refusal of the Department to make the indirect selling expense adjustment for lack of information on the record. In addition, however, North Star points to specific information on the record concerning the increase in G&A expense from 1993 to 1994. ²⁹⁵

This information was not contained in either the Final Determination or the Department’s brief. The Final Determination in fact contains very little information as to the facts underlying the Department’s decision with respect to G&A expense or its reasoning with respect to those facts. In response to Comment 8 of the Final Determination, the Department merely states:

We agree, in part, with the petitioner that it is inappropriate to use the 1993 G&A expenses. (See DOC position regarding Comment 6). We disagree with the petitioner, however, that BIA is appropriate because TAMSA provided us with the 1994 G&A information that the Department requested. As indicated in the questionnaire, it is the Department’s standard practice to calculate G&A based on the financial statements of the producing company that most closely relates to the POI, which, in this investigation, is January 1, 1994 through June 30, 1994. Therefore, the appropriate financial statement for TAMSA’s G&A calculation is TAMSA’s unconsolidated 1994 financial statement. We used the 1994 G&A expenses from the unconsolidated producing entity. ²⁹⁶

2. Discussion and Decision of the Panel

The Panel has reflected upon the Participants’ arguments and has noted the record evidence cited by North Star in its Panel Rule 57(2) Brief. Nevertheless, the Final Determination itself relies mostly on assumption and intuition for the relevant facts and reasoning-the assumption being that whatever facts were cited for the financial expense issues must, ipso facto, be sufficient facts for the G&A expense issue; and the intuition being that the peso devaluation in the first half of 1994 (and other factors) will have had the same clear and direct impact on G&A expense as they appear to have had on financial expense.

The Panel considers that neither point has been established and notes particularly the failure of the Department to point out relevant record facts on the G&A issue that could form "substantial evidence" in support of the Final Determination, which is the requirement that the statute places before us. ²⁹⁷

The Panel also observes that if the extraordinary item referred to in North Star’s footnotes were eliminated from the equation, the increase in G&A expense from 1993 to 1994 would be quite small. ²⁹⁸

Whether or not such an exclusion would be appropriate in this particular context, and the precise manner in which the peso devaluation affected G&A expenses (most of which presumably are in pesos), are matters of uncertainty to the Panel.

Accordingly, the Panel finds that it is not yet prepared to rule on the G&A expense issue and it orders the remand of this issue to the Department for a complete explanation of its reasoning and a full citation to the administrative record for facts on which it bases its determination on this issue.

C. Allocation Methodology for Nonstandard Costs

1. Arguments of the Participants

TAMSA

TAMSA sets out a number of challenges to the Department’s decision to reject TAMSA’s nonstandard cost allocation methodology. Specifically, TAMSA argues that the Department. ²⁹⁹

Disregarded its own established practice for accepting a company’s cost allocation methods when it is: (i) from the company’s normal records; (ii) based on accepted accounting norms, and (iii) not distortive; Rejected TAMSA’s allocation method which was consistent with standard Department practice, consistent with the company’s records and accounting norms, and non-distortive; Flatly ignored the opinions of two independent internationally recognized auditors that validated TAMSA’s method; Failed to base the rejection on substantial evidence in the record, relying only on assertions and demonstrably erroneous assumptions;

Imposed an unusual and patently distortive allocation method; and Punished TAMSA with highly adverse assumptions for more than one-fifth of TAMSA’s individual products, even though TAMSA provided all information [the Department] asked of it.

As noted above, it became clear at verification that TAMSA had allocated the nonstandard costs to specific products based on machine time from its normal records, but not of all machine time, merely that of the finishing line in its factory, which was the last of the three principal production processes. In TAMSA’s view, the finishing line was "the critical process that constrains capacity at TAMSA’s plant. In essence, the finishing line is the ‘gate’ of TAMSA’s factory, through which all production must pass, which determines the capacity and timing of all processes at TAMSA’s plant". ³⁰⁰

TAMSA concedes that the use of the finishing line methodology to allocate nonstandard costs to particular products was a matter of convenience if not practical necessity, given the circumstances of TAMSA’s accounting techniques and practices. ³⁰¹

TAMSA asserts that a full explanation was given to the Department at the Veracruz cost verification concerning this issue, particularly (i) how the flow of production must be synchronized with timing of the slowest process: the finishing line; (ii) how finishing line machine time was derived and used in TAMSA’s normal accounting system; and (iii) how finishing line machine time was "representative" of relative machine time in other process. ³⁰²

TAMSA also expresses concern that the Department’s decision to reject the finishing line allocation methodology may have been based on a misreading of an important verification exhibit, ³⁰³ and it asserts that the Department, at verification, had actually compared the allocation of the price variance under TAMSA’s methodology with the allocation of the price variance based on actual consumption or usage, without setting out the result of that comparison in the verification report.

Finally, TAMSA asserts that the Department "simply disregarded" the opinion of its Mexican auditing firm that the finishing line allocation methodology was consistent with Mexican GAAP and was "most suitable" for TAMSA’s particular manufacturing process, and of its U.S. auditing firm that the allocation methodology was reasonable under the GAAP and was used by U.S. companies. ³⁰⁴

In its briefs to the Panel and in oral argument, TAMSA emphasized that its allocation methodology was consistent with the Department’s "clearly established precedent," ³⁰⁵ and that it is the Department’s practice to "use allocation methodologies based on the company’s normal records, particularly where an independent auditor states that the method comports with GAAP, and the method is not shown to be distortive." ³⁰⁶

TAMSA also argues that the Department failed to point to any evidence on the record to support its "mere assertion" that TAMSA’s finishing line allocation methodology was distortive and did not reflect the machine time for the entire factory. Indeed, TAMSA urges the point that the only evidence specifically cited by the Department - the hypothetical illustration provided by TAMSA at verification - was clearly misinterpreted by the Department and was therefore "demonstrably erroneous." ³⁰⁷

The Department

In response, the Department argues that TAMSA’s finishing line allocation method is not consistent with Department practice; is not reasonable and appropriate for all nonstandard costs; and is not effectively supported by the opinions of TAMSA’s independent auditors. While conceding that machine time is a common basis for allocating processing costs, the Department argues that "the ‘machine time’ to which this applies is machine time specific to the particular cost center(s) for which costs must be allocated." ³⁰⁸

Accordingly, finishing line machine time different amounts of machine time required to produce a ton of various products.") and Shop Towels from Bangladesh, 57 Fed. Reg. 3996, 3999 (response to Comment 5) (Feb. 3, 1992).

is an appropriate basis for allocating finishing line overhead, while total machine time is the appropriate basis for allocating costs involving the entire production line. ³⁰⁹ Indeed, the Department reads the cases cited by TAMSA as in fact not supporting TAMSA’s position but supporting the "Department’s practice of looking to total machine time when the costs being allocated involve more than one cost center." ³¹⁰

In addition, the Department disputes the ostensible implication of TAMSA’s argument that machine time, even if unrepresentative of total machine time, must be preferred to all other allocation approaches, citing other instances when the Department has used or considered a per-ton method of allocation, a value-based allocation, and a labor-hour allocation. ³¹¹

In response to TAMSA’s argument that its preferred allocation method should be accepted because it is based on company records, the Department counters that TAMSA does not normally allocate its nonstandard costs to individual products and, therefore, its choice of allocation methodology has "no precedential value." ³¹²

This fact distinguishes Furfuryl Alcohol from South Africa, ³¹³ cited by TAMSA. Relatedly, the Department argues that "[t]he fact that finishing line machine time is considered in connection with other decisions for which output data are required does not establish the suitability of such data for allocation of nonstandard costs." ³¹⁴

Turning to the issue whether finishing line machine time was established by TAMSA to be a representative measure of per-product nonstandard costs incurred across the full production process, the Department argues in the negative:

It is undisputed that, had TAMSA accurately based its allocation methodology for nonstandard costs on total machine time, [the Department] would have accepted that as a reasonable allocation basis. Machine time for the finishing process alone, however, would only be acceptable as an allocation basis for cost associated with the entire production process if it could be shown that the finishing costs for individual products were a representative proxy for total machine time for those products, or in some other way consistently represented, across various products, costs incurred during the overall production process. TAMSA’s finishing line machine time allocation does neither. ³¹⁵

The Department argues that TAMSA’s bottleneck theory is a theoretical construct that is unlikely to work as advertised and is, in any event, inconsistent with TAMSA’s actual operations. Specifically, it is insupportable in three different respects:

While finishing time "may be representative of the level of effort provided in the finishing stage, it does not begin to quantify the processing costs which each product incurs at other stages of production." ³¹⁶

The theory does not effectively "apply to products which may incur different machine times at cost centers prior to reaching the finishing stage", ³¹⁷ and Not all of the products involved in the cost allocation are fully processed within the Veracruz plant to which the theoretical model applies (e.g., a significant amount of OCTG is exported to the United States to be threaded). ³¹⁸

The Department also dismisses the import and significance of the purportedly "misread" verification exhibit, arguing that it merely sets out a hypothetical which was designed to prove an obvious point but which, at the same time, totally fails to prove the essential point that finishing machine time was discernibly "representative" of total machine time. Similarly, the Department dismisses TAMSA’s "vague claim" that its allocation methodology bore a certain relationship to another methodology. ³¹⁹

Finally, the Department argues that it reasonably disregarded the affidavits from TAMSA’s auditors on the grounds that they were not prepared in the ordinary course of business but for the purpose of supporting TAMSA’s position in this antidumping investigation, and because their reliability was open to question. ³²⁰

Having set out its reasons for rejecting TAMSA’s allocation approach, the Department then argues that its methodology based on a percentage of standard costs reflected the total production process for OCTG products. ³²¹

The Department’s explanation for this choice was set out in the Team Concurrence Memorandum, as follows:

Because we do not have total machine time, total standard cost is the appropriate allocation basis for the nonstandard costs. Machine time and labor hours are factored into the build up of product-specific standard costs. Also, total standard costs are based on product specific direct and indirect material usage, labor usage, energy usage, other variable costs, maintenance and other services. In this case, total standard costs is a more appropriate measure of activity than machine time of one phase of production or a per-ton allocation. ³²²

In its brief to the Panel, the Department also explained its request for a remand with respect to its application of its standard cost allocation method as applied to products sold by TAMSA within the POI but produced by TAMSA outside the POI. In carrying out this calculation, the Department had initially decided to use the highest of the pool of possible adjustment factors (so that TAMSA would not benefit from its use of the "distortive" finishing machine time allocation approach).

On reconsideration, however, the Department has now concluded that since TAMSA had never been asked to submit standard costs for non-POI products, it should have applied a neutral adjustment factor to the COM. Accordingly, the Department now "requests remand to substitute a weighted average factor for the adverse factor currently used in its calculation of nonstandard costs for non-POI products." ³²³

North Star

North Star’s brief to the Panel supports the position taken by the Department, but emphasizes a number of points. First, North Star points out that TAMSA consistently responded to questionnaires in the discovery stage of the investigation with information "strongly indicat[ing] that TAMSA was basing its allocation on machine time for all production processes." ³²⁴

Indeed, it was not until the Veracruz cost verification that TAMSA disclosed for the first time that it was using finishing line machine time only, as opposed to process-specific machine time, as its allocation methodology for nonstandard costs. ³²⁵

North Star further argues that TAMSA did not provide the Department, at verification or otherwise, with any empirical analysis or other factual evidence to justify the bottleneck theory. ³²⁶

North Star argues, as does the Department, that in TAMSA’s normal accounting system, TAMSA does not allocate fixed overhead or variances to individual products, although it claims to use the finishing line allocation methodology for other purposes such as scheduling production, evaluating orders, and setting prices. ³²⁷

However, the test is not whether the raw data is drawn from "normal accounting records," but whether the methodology itself is reasonable and non-distortive: all "raw data" necessarily comes from a respondent’s normal accounting records. ³²⁸

On this latter issue, North Star asserts that TAMSA’s methodology was distortive in that "it a priori shifted costs from products which undergo less finishing to products which undergo more finishing." ³²⁹

Further, "TAMSA failed to demonstrate that the relative time spent at only one stage of production can serve as a proxy for the relative time spent at every stage of production." ³³⁰

North Star argues that, to the contrary, "the record evidence shows that TAMSA’s methodology would inappropriately allocate more melt shop and rolling mill overhead costs to those products with more extensive end-finishing." ³³¹

Dismissing the "post hoc rationalizations" of TAMSA’s independent auditors, ³³² North Star concludes its argument by supporting the Department’s alternative allocation method (based on standard costs) as a reasonable alternative to TAMSA’s distortive allocation methodology. ³³³

Continue on to Subsection 2: Discussion and Decision of the Panel

²⁸² TAMSA Panel Rule 57(1) Brief, at 42.

²⁸³ Id., at 45.

²⁸⁴ Id., at 46.

²⁸⁵ In its detailed discussion, the Department noted "the extreme decline in the value of the peso across 1994 (even without taking into consideration the precipitous drop in December of that year) made costs in 1993 unrepresentative of those in the 1994 POI." Department Panel Rule 57(2) Brief, at 66.The Department, however, pointed to no evidence in the record concerning the increase in the G&A costs, nor did it explain how the decline in the value of the peso would have affected, specifically, G&A costs.

²⁸⁶ Consistent with the rule that verification is a "spot check" and not an exhaustive examination of the respondent’s business (Monsanto Co. v. United States, 698 F. Supp. 275, 281 (Ct. Int’l Trade 1988)), the Department states that it "reviewed several areas of [the 1994 unconsolidated trial balance submitted by TAMSA to the Department at the Veracruz cost verification] extensively against both TAMSA’s internal accounting books and its submission," pointing out in this connection various notations made by the verifiers on the relevant documents. Department Panel Rule 57(2) Brief, at 69, 71.The Department also observed that TAMSA "opted not to provide" a revised G&A submission to accompany the 1994 trial balance at the time it was turned over to the Department. Id., at 70.

²⁸⁷ The Department argues that there is no basis in law for TAMSA’s allegation that the Department should have "announce[d]", prior to the final determination, that the 1994 data would be used. "[B]ecause the decision maker in antidumping cases does not reach a final decision until all of the evidence is before her (i.e., after the hearing), no right exists to have a particular element of that decision communicated to a party before the final determination."). Id., at 67.

²⁸⁸ See supra note 135.

²⁸⁹ Department Panel Rule 57(2) Brief, at 74, citing TAMSA Panel Rule 57(1) Brief, at 46.

²⁹⁰ Department Panel Rule 57(2) Brief, at 73, citing Industrial Fasteners Group v. United States, 710 F.2d 1576, 1582 note 10 (Fed. Cir. 1983) (in context of a tax rebate adjustment to FMV, where respondent possessed necessary facts, it had the burden of furnishing that information and establishing a prima facie case); Timken Co. v. United States, 673 F. Supp. 495, 513 (Ct. Int’l Trade 1987) (burden of establishing adjustment to FMV is on respondent seeking adjustment because respondent has access to the necessary information and might otherwise have an incentive to fail to produce information that might be contrary to its interests); and Silver Reed America v. United States, 711 F. Supp. 627, 630-31 (Ct. Int’l Trade 1989) (respondents must provide evidence to justify a proposed methodology for quantifying a requested adjustment).

²⁹¹Department Panel Rule 57(2) Brief, at 74, citing Prop. Doc. 34, TAMSA’s November 18, 1994 Section B Response, at Exhibit B-8.

²⁹² Department Panel Rule 57(2) Brief, at 75.

²⁹³ Id., at 75-76.

²⁹⁴ Id., at 76. The Department cites Mitsuboshi Belting Ltd. v. United States, No. 93-09-00640, slip op. 94-23, at 10 (Ct. Int’l Trade February 10, 1994) (when plaintiff had opportunity to submit information during administrative proceeding but did not do so, it cannot require the Department to consider that information).

²⁹⁵ North Star Panel Rule 57(2) Brief, at 36 note 89 and 38 note 97.

²⁹⁶ Fin. Det., 60 Fed. Reg. at 33573 (response to Comment 8); see also Team Concurrence Memorandum, Pub. Doc. 251, Fiche 46, Frame 51, at 20.

²⁹⁷ As to the financial expense issue, the Department noted in its brief to the Panel that "rampant inflation" as well as the peso crisis "played havoc with financial expense costs" (Department Panel Rule 57(2) Brief, at 31) but, once again, the Final Determination itself makes no reference to inflation, either with respect to the calculation of financial expenses or G&A expenses, and the Panel finds itself unable to simply "intuit" the relative impact of these factors on G&A expenses or to conclude that that impact is the "substantial evidence" that the statute requires in support of the Department’s Final Determination.

²⁹⁸ See supra note 294.

²⁹⁹ See TAMSA Panel Rule 57(1) Brief, at 48.

³⁰⁰ See TAMSA Panel Rule 57(1) Brief, at 50.

³⁰¹ See supra note 148. See also TAMSA Panel Rule 57(1) Brief, at 57 ("[A]llocation over ‘total machine time’ was not a realistic option, given TAMSA’s normal record-keeping. It was practically impossible for TAMSA to derive nonstandard costs based on machine time for the entire factory for each product, because TAMSA does not maintain its records in a way that would make this approach practicable.").

³⁰² TAMSA Panel Rule 57(1) Brief, at 57.

³⁰³ TAMSA states that "[t]he Department’s verification report demonstrates a fundamental failure to grasp TAMSA’s methodology. The report’s summary stated that TAMSA’s methodology ‘equally divides nonstandard costs between subject and non-subject merchandise.’ (footnote omitted). This was demonstrably incorrect and evidently was based on a misunderstanding regarding a hypothetical, simplified illustration in a verification exhibit, designed to demonstrate the distortive effects of allocating depreciation on a tonnage basis." See TAMSA Panel Rule 57(1) Brief, at 51. The illustration was contained in Cost Exhibit D-1 and explained in TAMSA’s May 9, 1995 Case Brief, Prop. Doc. 82, Fiche 97, Frame 35, at 11-13, and Attachment 2.

³⁰⁴ Id., at 52, 61.

³⁰⁵ Id., at 53-54, citing Certain Welded Carbon Steel Small Diameter and Light-Walled Rectangular Pipes and Tubes from Singapore, 51 Fed. Reg. 33101, 33104 (response to Comment 6) (Sept. 18, 1986) ("[t]he absorption of overhead by different products is more accurately reflected using an allocation method which accounts for the

³⁰⁶ TAMSA Panel Rule 57(1) Brief, at 54, citing Furfuryl Alcohol From South Africa, 60 Fed. Reg. 22550, 22556 (response to Comment 17) (May 8, 1995) ("The Department normally relies on the respondent’s books and records prepared in accordance with the home country GAAP unless these accounting principles do not reasonably reflect the COP of the merchandise.").

³⁰⁷ TAMSA Panel Rule 57(1) Brief, at 58.

³⁰⁸ Department Panel Rule 57(2) Brief, at 79.

³⁰⁹ Id., at 79-80 (emphasis added), citing Steel Wire Rope from Korea, 58 Fed. Reg. 11029 (February 23, 1993).

³¹⁰ Department Panel Rule 57(2) Brief, at 80 (emphasis in original). For cases cited by TAMSA, see supra note 305.

³¹¹ Department Panel Rule 57(2) Brief, at 80-81.

³¹² Id., at 81-82.

³¹³ 60 Fed. Reg. at 22556 (Comment 17).

³¹⁴ Department Panel Rule 57(2) Brief, at 83.

³¹⁵ Id., at 83-84 (emphasis in original).

³¹⁶ Id., at 86.

³¹⁷ Id., at 84.

³¹⁸ Id., at 84, 86.

³¹⁹ See supra text accompanying note 302. The Department states that this claim has no basis in the record and is not credible: "There is no reason why Commerce would have verified an allocation methodology which was not used." Department Panel Rule 57(2) Brief, at 89 note 51.

³²⁰ Department Panel Rule 57(2) Brief, at 90-91.

³²¹ Id., at 93.

³²² Team Concurrence Memorandum, Pub. Doc. 251, Fiche 46, Frame 51, at 18-19.; see also Fin. Det., 60 Fed. Reg. at 33573.

³²³ Department Panel Rule 57(2) Brief, at 97.

³²⁴ North Star Panel Rule 57(2) Brief, at 48 (emphasis in original).

³²⁵ Id. North Star argues that TAMSA’s failure to disclose this fact at an earlier stage "severely prejudiced the Department’s investigation. Without advance knowledge, the Department had no opportunity to test TAMSA’s key assumptions underlying this allocation method.... " Id., at 51.

³²⁶ Id., at 49. Like the Department, North Star disputes the value of TAMSA’s verification exhibit, Cost Verification Report, Exhibit D1, Prop. Doc. 80: "This example in no way demonstrates the reasonableness of the methodology."North Star Panel Rule 57(2) Brief, at 49 note 126. North Star argues that the entire bottleneck theory is based on statements made in TAMSA’s Case Brief, Rebuttal Brief, and in the public hearing, without any record evidence in support thereof. Id., at 52 note 132.

³²⁷ North Star Panel Rule 57(2) Brief, at 54-55. North Star argues that this claim was never verified by the Department.

³²⁸ See Department Panel Rule 57(2) Brief, at 82.

³²⁹ Id., at 56-57.

³³⁰Id., at 57 (emphasis in original). North Star asserts that under TAMSA’s methodology, virtually all nonstandard costs are shifted to the OCTG product which requires more end finishing. Id., at 58.

³³¹ Id., at 58.

³³² Id., at 59. North Star notes that "the Department normally places great weight on the views of independent auditors, if they are prepared for purposes other than justifying a particular method used to prepare antidumping responses," but accords very little weight to "ex post facto rationalizations by outside accountants prepared solely for the purposes of dumping investigations." Id., at 60.

³³³ Id., at 61.