[Federal Register Volume 62, Number 2 (Friday, January 3, 1997)]
[Notices]
[Pages 392-399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-72]
[[Page 392]]
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DEPARTMENT OF COMMERCE
[C-549-401]
Certain Apparel From Thailand; Determination to Amend Revocation,
in Part, of Countervailing Duty Order
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of determination to amend revocation, in part, of
countervailing duty order.
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SUMMARY: The Department of Commerce (the Department) has determined to
amend the effective date of the revocation of the countervailing duty
order on Certain Apparel from Thailand, with respect to the products
classified under the item numbers of the Harmonized Tariff Schedule
(HTS) listed in Appendix D to this notice, from January 1, 1995 to
January 1, 1991. In addition, the Department has determined not to
amend the effective date of revocation with respect to the products
classified under the HTS item numbers listed in Appendix B to this
notice. As a result of this determination not to amend the effective
date of revocation, we will now complete the administrative review of
the countervailing duty order, covering the period January 1, 1991
through December 31, 1991, with respect to the Appendix B items.
EFFECTIVE DATE: January 3, 1997.
FOR FURTHER INFORMATION CONTACT: Dana Mermelstein or Robert Copyak,
Office of CVD/AD Enforcement VI, Import Administration, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202)
482-2786.
SUPPLEMENTARY INFORMATION:
Background
During the original certain textile products and certain apparel
investigations from various countries, including Thailand, the
Department reviewed issues concerning the standing of petitioners with
respect to apparel and explained its determinations in Final Negative
Countervailing Duty Determination: Certain Textile Mill Products and
Apparel from Malaysia (50 FR 9852; March 12, 1985) (Malaysia Final
Determination). No injury investigations were required for the
countries involved, and the Department relied upon a list of 86 like
products both for determining the standing of petitioners and for
establishing the corresponding scope of the certain apparel order. See
Letter from Wilmer, Cutler & Pickering, Dec. 3, 1984, Annex 3, on file
in the Central Records Unit, Room B-099, Department of Commerce (CRU).
With respect to the investigation on certain apparel, the
Department determined that the Amalgamated Clothing and Textile Workers
Union (ACTWU) was an interested party with respect to 52 of the 86
apparel like products covered by the petition. The Department also
determined that the standing requirement for the remaining apparel
products covered by the petition was satisfied by the International
Ladies' Garment Workers' Union (ILGWU). Together, these petitioners had
filed the petition ``on behalf'' of the apparel industry.
On March 13, 1992, the Department announced its intent to revoke
the countervailing duty order on certain apparel from Thailand pursuant
to section 355.25(d)(4)(i) of the Department's regulations because no
interested party had requested an administrative review for at least
four consecutive review periods. Notice of Intent to Revoke
Countervailing Duty Orders, 57 FR 8860 (March 13, 1992) (Intent to
Revoke Notice). Pursuant to the Department's regulations, if no
interested party objects to the Department's intended revocation or
requests an administrative review of the countervailing duty order, the
Department will revoke the order. 19 CFR Sec. 355.25(d)(4)(iii)(1993).
On March 16, 1992, ACTWU objected to the intended revocation and
requested an administrative review, covering the period January 1, 1991
through December 31, 1991. The review was initiated on April 13, 1992.
Initiation of Antidumping and Countervailing Duty Administrative
Reviews, 57 FR 12797 (April 13, 1992). On April 24, 1992, the Royal
Thai Government (RTG) challenged the standing of ACTWU to object to the
Department's intended revocation and to request an administrative
review. The RTG argued that, to the extent that ACTWU lacked standing
with respect to any of the many like products covered by the order, the
Department should revoke the countervailing duty order with respect to
those products and conduct the administrative review of only the
merchandise which remained in the scope of the order. On June 19, 1996,
the Department issued its preliminary findings with respect to the
standing of ACTWU. See Memorandum from Barbara E. Tillman to Paul L.
Joffe, Acting Assistant Secretary for Import Administration, June 19,
1996 (Analysis Memorandum). Comments on the Department's preliminary
findings were filed by the RTG. The Department's final determinations
with respect to this issue are fully discussed in the sections
Interested Party Status of ACTWU and Analysis of Comments, below.
Revocation Under Section 753 of the Uruguay Round Agreements Act
This countervailing duty order was revoked effective January 1,
1995, pursuant to section 753 of the Tariff Act of 1930, as amended by
the Uruguay Round Agreements Act (60 FR 40568). The Department is
conducting an administrative review only to determine the appropriate
assessment rate for entries made during the period January 1, 1991
through December 31, 1991.
Scope Conversion
The scope of the certain apparel order was originally defined in
terms of the item numbers listed under the Tariff Schedule of the
United States Annotated (TSUSA). See Final Affirmative Countervailing
Duty Determination and Countervailing Duty Order: Certain Apparel from
Thailand (50 FR 9819; March 12, 1985) (Thailand Final Determination).
On January 1, 1989, the United States fully converted from TSUSA to the
Harmonized Tariff Schedule (HTS). At that time, the Customs Service
prepared a list which included all of the HTS numbers necessary to
cover the items previously identified by the TSUSA. However, because
the two tariff schedules use different classification systems which do
not produce a one-to-one product correlation, this list also included
some items not included in the like product list relied upon by the
Department in the investigation. On July 26, 1993, the Department
published Certain Apparel; Notice of Proposed Scope Amendment (58 FR
39789), which contained the proposed HTS scope and invited comments.
The conversion became final on May 17, 1994, with the publication of
Certain Apparel from Thailand; Scope Amendment (59 FR 25699) (Scope
Notice), in which the comments submitted were addressed. The analysis
undertaken as a result of the RTG's challenge of ACTWU's standing is
based on the item numbers of the HTS listed in the Scope Notice; these
HTS item numbers have now been separated into those for which we
determine that ACTWU has standing (Appendix B) and those for which we
determine ACTWU does not have standing (Appendix D).
Applicable Statute and Regulations
The Department has made this determination in accordance with
sections 751 (a) and (c) of the Tariff Act of 1930, as amended (the
Act). Unless otherwise indicated, all citations to the
[[Page 393]]
statute and to Department's regulations are in reference to the
provisions as they existed on December 31, 1994.
Interested Party Status of ACTWU
In April 1992, the RTG challenged the standing of ACTWU both to
object to the Department's intended revocation and to request an
administrative review of the countervailing duty order on certain
apparel from Thailand. The RTG argued that, to the extent ACTWU lacked
standing with respect to any of the many like products covered by the
order, the Department should revoke the order with respect to those
products and conduct the administrative review of only the merchandise
which remained in the scope of the order. The RTG cited to the original
investigation, noting that ACTWU was found to have standing for only 52
of the 86 like products investigated (standing for the remaining like
products was satisfied by co-petitioners). Furthermore, the RTG noted
that declining union membership had been documented in the course of
the investigation. Thus, the RTG urged the Department to examine anew
whether ACTWU had standing with respect to all of the like products
covered by the order.
During the 1985 countervailing duty investigations of apparel and
textile mill products, which involved many countries, including
Thailand and Malaysia, the Department determined that ACTWU was an
interested party with respect to 52 of the original 86 apparel like
products covered by the petition. Final Negative Countervailing Duty
Determination; Certain Textile Mill Products and Apparel from Malaysia,
50 FR 9852 (March 12, 1985) (Malaysia Final Determination). The
Department determined that the standing requirement for the remaining
apparel products covered by the petition was satisfied by the
International Ladies' Garment Workers' Union (ILGWU). Together, these
petitioners had filed the petition ``on behalf of'' the apparel
industry and had standing with respect to the 86 apparel like products
at issue. Id. at 9854; Thailand Final Determination.
The RTG contested ACTWU's standing as an interested party after the
objection by ACTWU to the Department's intent to revoke the order. The
Department determined, based on information collected in the course of
this proceeding, that there was no basis to reexamine ACTWU's standing
for the 52 like products for which it was found to have standing during
the investigation. See Memorandum from Barbara E. Tillman, Director,
Office of Countervailing Compliance to Joseph A. Spetrini, Deputy
Assistant Secretary for Import Administration, on the Interested Party
Status of a Domestic Interested Party With Respect to the
Countervailing Duty Order on Apparel from Thailand, October 14, 1992
(October 1992 Memorandum), on file in the Central Records Unit, Room B-
099, Department of Commerce (CRU).
The Department examined ACTWU's status as an interested party,
within the meaning of section 771(9)(D) of the Act, with respect the 34
remaining like products covered by this order. See Analysis Memorandum.
The Department asked ACTWU to indicate which of these products were
produced by its members.1 Regarding unions, section 771(9)(D)
defines ``interested party'' as ``a certified union or recognized union
or group of workers which is representative of an industry engaged in
the manufacture, production or wholesale in the United States of a like
product. . . .''
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\1\ An 87th like product, flatbags, handbags and luggage, was
subject to investigation and was classified as within the scope of
the apparel order when certain textile mill products and certain
apparel were separated into two countervailing duty orders. There is
no information in the record which indicates that ACTWU had standing
with respect to this product.
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After examining the information provided by ACTWU, and considering
the arguments submitted by the RTG over the course of this proceeding,
the Department issued its preliminary findings on June 19, 1996. See
Analysis Memorandum. Of the remaining 34 like products, the Department
determined that ACTWU had standing as an interested party with respect
to five. Combined with the 52 like products for which ACTWU was found
to have standing during the investigations (see Malaysia Final
Determination), the total number of like products for which ACTWU was
found to have standing is 57. The Department invited comments on this
determination. We address the RTG's arguments in the Analysis of
Comments section below. No other party submitted comments.
Analysis of Comments
Comment 1: The RTG argues that the Department's determination that
ACTWU has standing with respect to 57 like products is based upon a
legal standard that is contrary to the plain language of the statute.
The RTG cites section 355.2(i)(4) of the Department's regulations,
which specifies that to be an interested party, a union must be
``representative of the industry or of sellers (other than retailers)
in the United States of the like product produced in the United
States.'' The RTG also cites section 771(4)(D) of the Act, which
defines ``industry'' as ``the domestic producers as a whole of a like
product, or those producers whose collective output of the like product
constitutes a major proportion of the total domestic production of that
product * * *.'' The RTG concludes that in order to be representative
of those producers whose collective output represents a major
proportion of total domestic production of the like product, a union
must demonstrate that it represents workers in each facility included
in such a determination.
The RTG argues that it is inappropriate for the Department to
presume that a union is representative of an industry producing the
like product when it represents only one or a small number of the
workers in that industry. Had Congress intended such a result, the RTG
argues, it would not have required that a union be ``representative of
an industry'' (which clearly encompasses more than just one worker or
more than just one enterprise); rather, Congress would simply have
required the union to be representative of a ``producer'' of the ``like
product.''
In conclusion, the RTG notes that ACTWU, like all unions, is
engaged in efforts to increase its membership by enrolling workers at
factories that are not yet unionized; if ACTWU has not succeeded in
enrolling workers at companies whose collective output represents a
major proportion of total domestic production of a particular like
product, then, the RTG argues, the union cannot simply be deemed
representative of the industry producing that product. The RTG urges
the Department to arrive at an interpretation of the statute that gives
full meaning to the term ``industry'' in the specifications of the
standing requirements for unions.
Department's Position: We disagree with the RTG's assertion that we
applied the incorrect legal standard to determine whether ACTWU is an
interested party, and we continue to find that ACTWU has standing to
object to revocation and request an administrative review for each of
the like products for which the union ultimately claimed interested
party status, in accordance with section 355.25(d)(4)(iii) of the
Department's regulations.
The RTG correctly notes that to qualify as an interested party
pursuant to section 771(9)(D) of the Act, a union must be
``representative of an industry engaged in the manufacture, production,
or wholesale in the United States of a like product.'' However, the RTG
incorrectly links this requirement
[[Page 394]]
directly to the definition of the term ``industry'' under section
771(4)(A). The RTG concludes that, to meet this requirement, a union
must at least demonstrate that it represents workers in each facility
producing the like product. We disagree. Such a narrow interpretation
of the phrase ``representative of an industry'' would unduly limit the
rights of a union to qualify as an interested party, object to
revocation, and otherwise participate in a proceeding.
Section 771(9) of the Act defines several categories of domestic
interested parties. In each case, the key to qualifying is for the
party to manufacture, produce or wholesale the like product in the
United States. For instance, under section 771(9)(C), to qualify as a
``manufacturer or producer'' of the like product, the Court of
International Trade has held that a party must actually manufacture the
product in the United States. See Brother Indus. (USA) v. United
States, 801 F. Supp. 751, 757 (CIT 1992).
However, the language of the legislative history describing the
standing requirements ``is broad and unqualified.'' Id. (citing S. Rep.
No. 249, 96th Cong., 1st Sess. 90 (1979)). Where Congress intended to
further limit a party's ability to qualify as an interested party,
Congress made that intention explicit. In particular, sections 771(9)
(E) and (F) explicitly limit the rights of a trade or business
association in just this manner. The legislative history explains:
The provision also provides that a trade or business association
may be considered an interested party only when a majority of its
members are importers of merchandise under investigation, or
manufacture, produce, or wholesale a like product, as the case may
be. This limitation is believed to fairly delimit those groups with
sufficient interest to always be considered interested parties. An
association representative of importers generally, or business
generally, would not be considered an interested party under this
limitation, although a sub-group of such an association may qualify.
S. Rep. No. 249, 95th Cong., 1st Sess. 90 (1979). By contrast, with
regard to section 771(9)(D), the legislative history states that the
provision ``clarifies that a union may file a petition and participate
in proceedings under Title VII as added by the bill. The union or group
of workers must represent workers in the relevant U.S. industry.'' Id.
Congress gave no indication that by requiring a union to be
``representative of an industry,'' it intended to limit the rights of
unions which ``represent workers in the relevant U.S. industry'' to
participate in proceedings as interested parties. The legislative
history makes clear that Congress intended unions which represent
workers in the relevant U.S. industry to be ``representative'' of the
industry. For these reasons, we find that the phrase ``representative
of an industry'' requires no more than that a union ``represent workers
in the relevant U.S. industry.''
This is the same determination reached by the Department in the
original apparel and textile mill product investigations. See Malaysia
Final Determination at 9854. Contrary to the claim of the RTG, we have
not determined that a union representing just one worker at just one
facility producing the like product necessarily qualifies as an
interested party. We have determined that when a union certifies, as
ACTWU has done, that it represents workers in the relevant U.S.
industry, we will not investigate the matter further, absent actual
evidence calling the union's certification into question. This
determination is further explained in the Department's Position on
comment 2, below.
Having found that ACTWU qualifies as an interested party, the next
issue is whether the union may object to revocation and request an
administrative review for those like products for which it has claimed
standing. Section 355.25(d)(4)(iii) of the Department's regulations
provides simply that if no interested party objects to revocation or
requests a review, the Department will conclude that the order (or
suspended investigation) is no longer of interest to domestic
interested parties, as provided for by section 355.25(d)(1)(i).
Conversely, if a domestic interested party does object, and no other
party expresses its support for revocation, the Department will not
revoke the order. In this situation, the Department effectively
presumes that the order, whether in whole or in part, is of interest to
domestic interested parties and that revocation is not appropriate.
The Department indicated in the commentary to the regulations that
when ``parties which account for a significant proportion of domestic
production'' either affirmatively oppose or support revocation, we will
make a case-by-case determination of whether revocation is appropriate.
53 FR 52,306, 52,333 (1988). Accordingly, the Department has revoked an
order over the objection of one or more domestic interested parties,
and we have refused to revoke despite receiving support for revocation
from part of the domestic industry. See Oregon Steel Mills, Inc. v.
United States, 862 F.2d 1541 (Fed. Cir. 1988) (affirming revocation);
Certain Round-Shaped Agricultural Tillage Tools From Brazil;
Preliminary Results of Changed Circumstances CVD Review and Intent Not
To Revoke Order, 55 FR 41,265 (1990) (declining to revoke). In this
case, however, no domestic interested party has expressed support for
the order. ACTWU's objection to revocation is the only indication we
have received regarding the domestic industry's position. As described
above, ACTWU has certified that it represents workers producing each of
the remaining 57 like products, which qualifies the union as an
interested party. Given that no domestic interested party has supported
revocation, it is reasonable to presume that the remainder of the
industry favors or at least acquiesces in ACTWU's position.
This is similar to the presumption adhered to by the Department for
determining whether a petition for initiating an antidumping or
countervailing duty investigation is filed ``on behalf of an
industry,'' in accordance with section 702(b)(1) of the Act. In that
situation, the Department presumes that the petitioner filed on behalf
of the domestic industry, unless a majority of the domestic industry
affirmatively opposes the petition. The Court of Appeals for the
Federal Circuit has upheld this interpretation of the statute as being
reasonable. Minebea Co., Ltd. v. United States, 984 F.2d 1178, 1180
(Fed. Cir. 1993); Suramerica de Aleaciones Laminadas, C.A. v. United
States, 966 F.2d 660 (Fed. Cir. 1992).
Comment 2: The RTG next argues that, even assuming the Department
has applied the correct legal standard, the Department must still
investigate whether ACTWU meets this standard, both with respect to the
52 like products for which ACTWU was found to have standing in the
original investigation and with respect to the five products for which
ACTWU first made standing claims in this proceeding. The RTG claims
that it is incorrect for the Department to refuse to reconsider its
original standing determination; moreover, the Department cannot refuse
to further investigate ACTWU's additional claims of standing, absent
affirmative evidence that ACTWU's interested party status has changed.
Regarding the 52 like products for which ACTWU originally claimed
standing, the RTG contests the Department's refusal during this
proceeding to reconsider its determination in the original
countervailing duty investigation. The RTG argues that it was
documented in the context of the original 1984-1985 investigations that
union membership in
[[Page 395]]
the apparel industry had been gradually declining. The RTG asserts that
it is likely that this trend has continued and that ACTWU's membership
has changed over time. The RTG also asserts that companies in import
sensitive industries have been moving production facilities from the
unionized Northeast to non-unionized areas in the South, to Mexico, and
elsewhere overseas. On this basis, the RTG concludes that there exists
public information showing declining and changing union membership in
the apparel industry.
According to the RTG, these facts should have caused the Department
to revisit its 1985 determination. In addition, the RTG claims that the
information provided by ACTWU in 1984, indicating standing for 52 of
the like products, is inconsistent with ACTWU's ultimate claim in 1994
of standing for five additional like products. In claiming standing for
five additional like products, ACTWU called attention to obvious
changes in membership over time. Such changing membership indicates
that ACTWU may no longer represent one or more of the like product
industries it represented in 1984.
Furthermore, the RTG argues, the Department's determination that
ACTWU is an interested party with respect to the original 52 like
products was based on ACTWU's certification during the investigation
that it was an ``interested party.'' According to the RTG, this is a
legal conclusion on the part of ACTWU, and is therefore not the
appropriate basis for the Department's determination. Rather, the
Department should seek a factual representation from which to draw its
own legal conclusion.
As a matter of policy, the RTG argues that it is inappropriate for
the Department to place the burden of production in this instance on
respondents. ACTWU's membership information is not public; it would be
impossible for the RTG to determine whether ACTWU continues to
represent workers in each of the like product industries at issue; and,
it is contrary to the normal presumption of the conduct of a
countervailing duty investigation to require a party to come forward
with another party's confidential information.
Thus, the RTG urges the Department to solicit and examine
information regarding ACTWU's membership, as it relates to these like
products. Specifically, for each like product, the RTG urges the
Department to obtain the following information: the names of the
companies in which ACTWU represents workers, the number of union-
represented and non-union workers in each such facility, the names of
companies which produce the like product whose workers are not
represented by the union, and an estimate of the number of workers in
such facilities.
Department's Position: We disagree with the RTG. As described in
the Analysis Memorandum, absent affirmative evidence showing that a
party's status has changed, we do not reconsider our original standing
determination with respect to those like products for which a domestic
interested party, objecting to revocation or requesting a review, had
interested party status during the original investigation. Moreover,
ACTWU has certified that it continues to represent workers producing
each of the 52 like products for which it was originally determined to
have standing, and neither the RTG nor any other party has presented
affirmative evidence challenging ACTWU's certification.
It is true that several years have passed since the Department
reached its original standing determination. However, the Department is
not required to investigate standing issues to the same extent as it
must allegations of dumping or subsidization. See Brother Indus., Ltd.
v. United States, Slip Op. 92-231 at 4-5 (CIT Dec. 30, 1992). For the
purpose of requesting a review or objecting to revocation, it would not
be appropriate either to revisit our original standing determination or
to question a union's certification that it represents workers
producing a particular like product, absent some evidence that the
union's representation of those workers has, in fact, changed.
Much the same holds true for the remaining like products for which
ACTWU claimed standing. The union certified that it represents workers
in each of these industries, and the RTG has presented no evidence to
the contrary. Absent such evidence, we consider ACTWU's certification
sufficient. It is worth noting that the Department did not accept
ACTWU's initial standing claim at face value. ACTWU originally claimed
that its members produced eighteen additional products. ACTWU correctly
qualified this claim, however, by noting that the products its members
produced were identical to the products covered by the scope of the
order except for vegetable fiber content. The Department rejected this
claim on the ground that the like product list describing the scope of
the order distinguishes among apparel products on this very basis--
according to fiber content. See Letter from Barbara Tillman to Mark
Love, dated May 11, 1994, on file in CRU. Thereafter, ACTWU withdrew
this claim, and submitted another claim with respect to five different
like products, which ACTWU certified as being identical to those
covered by the scope of the order. We examined the claim and the
certification, and deemed the certification sufficient to support the
claim, absent evidence to the contrary. No such evidence was provided.
This standard does not place an undue burden on respondents to
produce evidence to challenge a union's standing to object to
revocation or request a review. The Department found at the time of the
original investigation that ACTWU represented workers producing 52 like
products, and ACTWU has certified that it continues to produce these
and the other five like products for which it has claimed standing. It
is not too much to require that a party challenging this assertion do
more than point to the passage of time and shifts in demographics as
support. Like the standard for filing a petition, the standing
requirements for objecting to revocation are to be construed liberally.
See Brother Indus., Slip Op. 92-231 at 4 (citing S. Rep. 249 at 63);
Brother Indus., 801 F.Supp. At 757. We determine that ACTWU has met
these requirements.
Comment 3: The RTG argues that the Department should revoke the
order with respect to those products at the HTS ten-digit level that do
not fall within the 57 like products for which ACTWU has claimed
standing. The RTG notes that examination of standing at the ten-digit
level is consistent with the standing analysis used by the Department
in the suspended investigation of certain textile mill products from
Thailand. The RTG is concerned that at the eight-digit level, the HTS
item numbers cover several products, some of which are represented
among the list of 86 like products originally covered by this
countervailing duty order and some of which are not. Thus, the
Department should revoke the order for these products at the ten-digit
level.
Department's Position: Beginning with the conversion from the TSUSA
to the HTS tariff schedule, the Department has conducted its standing
analysis in this proceeding at the ten-digit HTS level. See Scope
Notice, 59 FR at 25610. This is the same approach we took in the
suspended investigations involving textile mill products from Thailand
and various other countries. See, e.g., Certain Mill Products From
Thailand; Notice of Termination in Part, 60 FR 20258 (April 25, 1995);
Certain Textile
[[Page 396]]
Mill Products From Colombia and Thailand; Notice of Proposed
Conversion, 59 FR 16101 (April 15, 1994). If only the eight-digit HTS
item number is listed for a particular product category, either the
category does not break down into additional ten-digit HTS levels, or
all of the products included in that category (at the eight-digit or
greater level) are covered by the scope of the order.
Where the qualifications of coverage corresponded to the breakdown
of products at the ten-digit level, we have now included the
appropriate HTS numbers at the ten-digit level to identify both HTS
items for which the order remains in effect for the 1991 review period
and the HTS items for which the effective date of revocation will be
amended (as indicated in Appendix B and Appendix D). Further, in
drawing up the HTS list, we included annotations for the first time in
the Scope Notice to clarify the limits of coverage under particular
item numbers which identified merchandise outside of the scope of the
order as well as merchandise within the scope. In the course of this
proceeding, the Department has added a number of annotations, and other
annotations have been clarified as a result of the RTG's arguments in
Comment 4 below.
Comment 4: The RTG urges the Department to reexamine some of the
products for which it found ACTWU to have standing and to revise the
footnotes which annotate certain of the HTS item numbers for which it
found ACTWU to have standing. Basically, the RTG takes issue with some
of the Department's categorizations of the numerous HTS item numbers
according to the list of 86 like products which has been the basis for
standing determinations throughout the history of this case.
Specifically, the Department categorized HTS number 6111.3050 (babies'
garments and cloth accessories, sunsuits, blanket sleepers (synthetic,
knit)) under the like products for nightwear (like product 58), other
apparel (60), or playsuits (45). According to the RTG, there is no
indication that these like product categories were ever intended to
include baby apparel, and that only those like product categories which
carry the designation ``WGI,'' for women's, girls', and infants'
apparel, should be used for determining ACTWU's standing with regard to
baby apparel. Since ACTWU made no standing claims with respect to many
WGI like products made from synthetic fabric, it is reasonable to
conclude that ACTWU lacked standing with respect to babies' garments
and clothing accessories. Thus, the Department should revoke the order
with respect to HTS 6111.3050.
In addition, the Department found ACTWU to have standing for HTS
6112.1200, men's and boys' synthetic track suits, based on ACTWU's
standing for the like products for other coats (42), knit shirts (46),
and trousers (54) of man-made fiber. According to the RTG, there is no
indication that track suits or other warm-up style suits were ever
intended to fall within these particular like products, and therefore,
the order with respect to this HTS item number should also be revoked.
The RTG argues that the Department also incorrectly classified the
products included under HTS 6209.2050, babies' sunsuits, washsuits,
clothing sets and diapers (non-knit, cotton), under the like products
for playsuits (8) and other apparel (21) of cotton, and found ACTWU to
have standing with respect to all products within this HTS subheading.
The RTG takes issue with the Department's determination that diapers
constitute ``other apparel,'' and notes that there is no indication
that ACTWU represents workers making diapers. Thus, the order should be
revoked with respect to HTS 6209.2050.
With respect to ``trousers, breeches, and shorts,'' the RTG's
argues that the like product categories for ``trousers'' necessarily
exclude breeches and shorts, and therefore although ACTWU was found to
have standing with respect to ``trousers,'' it cannot be said to have
standing with respect to breeches and shorts. Because the HTS numbers
which identify trousers also include breeches and shorts, and there is
no indication, according to the RTG, that ACTWU's standing for trousers
extends to breeches and shorts, the RTG argues for an annotation which
notes the limits of coverage under any HTS item numbers which cover
``trousers breeches, and shorts'' together. Alternatively, the RTG
argues for revocation of the HTS numbers at the ten-digit level.
The RTG also noted a number of additional HTS item numbers for
which they recommend the Department modify the annotations to clarify
the limits of the coverage under those item numbers.
Department's Position: With respect to HTS item numbers 6111.3050,
6112.1200, and 6209.2050, the RTG's concern that the Department has
misclassified these HTS items in terms of the listing of like products
which are subject to the order is misplaced. As a general matter, in
classifying these items using the like product list, the Department
consulted with the United States Customs Service and received
confirmation that the classifications were reasonable. See Memorandum
for The File on Certain Apparel from Thailand--Like Products and HTS
Numbers, dated February 20, 1996, on file in the CRU.
We reject the RTG's argument that ACTWU's standing with respect to
babies' apparel on the whole is questionable based on the fact that
ACTWU lacks standing with respect to several items of babies' apparel
included among the like products. The Department determined ACTWU's
standing for these HTS item numbers after first classifying them
according to like products. Because ACTWU was determined to have
standing for all of the like products under which these HTS items were
classified, their standing for this HTS item number needs no
qualification.
We also reject the RTG's conclusion that track suits were never
intended to be included among the 87 like products covered by the
countervailing duty order. This conclusion is unsupported by record
evidence. This issue, like so many of the issues raised by the RTG,
actually concerns the Department's conversion of the tariff schedule
from the TSUSA to the HTS listing. As noted above, ACTWU represents
workers producing the like products ``other coats,'' ``knit shirts,''
and ``trousers'' of man-made fiber. In conducting the original
investigation, the Department determined that those like products
corresponded to a certain TSUSA item number or numbers. Thereafter, in
making the conversion from TSUSA to HTS, the Department concluded that
those TSUSA item number or numbers corresponded in part to the HTS item
number 6112.1200.10, for men's and boys' synthetic track suits. At the
same time, we determined that of the like products corresponding to the
coverage of the order, the closest match to track suits are the like
products mentioned above. Thus, we based our standing determination for
track suits on the fact that ACTWU has standing for the individual like
products which comprise track suits.
This is a reasonable determination. While synthetic track suits do
constitute a single item for HTS purposes, a track suit actually
consists of two separate components, a relatively light-weight
synthetic coat and trousers. Indeed, the HTS listing for track suits is
broken down into coats, shirts, and trousers; in the case of coats, the
HTS then cross-references the separate HTS listings for those items.
This confirms that it is reasonable to classify track suits under the
like products for their components.
Similarly, many of the other standing determinations questioned by
the RTG concern HTS item numbers which cover
[[Page 397]]
``ensembles,'' which we have classified under the like products for
their components. In reviewing our determinations, we agree with the
RTG that certain of these classifications should be clarified. In many
cases, ACTWU was found to have standing for some of the components and
not for others. ACTWU's standing with respect to the HTS item is
limited by the like products for the ensemble components for which it
was found to have standing. Thus, we have clarified the annotations as
appropriate, or resorted to the use of the ten-digit HTS item number,
as explained in Comment 3 above and as indicated in Appendix B.
We disagree, however, that the like product category ``trousers''
excludes breeches and shorts. We determine that breeches and shorts are
types of trousers. Therefore ACTWU's standing with respect to
``trousers'' extends to all types of trousers, including breeches and
shorts. Thus, we will neither be adding the annotation desired by the
RTG nor revoking at the ten-digit level the HTS numbers for breeches
and shorts.
Determination to Amend Revocation, in Part
For the reasons stated above, the Department has determined that
the ACTWU does not have standing as an interested party with respect to
30 of the like products covered by this countervailing duty order, as
listed in Appendix C this notice. The HTS item numbers corresponding to
the like products listed in Appendix C are listed in Appendix D. The
Department is now amending the effective date of the revocation of the
order with respect to these HTS item numbers to make it effective
January 1, 1991. Accordingly, for the merchandise identified in
Appendix D, the Department will instruct the U.S. Customs Service to
liquidate without regard to countervailing duties all unliquidated
entries made on or after January 1, 1991.
The Department determines that ACTWU does have standing as an
interested party, in accordance with 19 U.S.C. 1677(9)(D) and 19 C.F.R.
Sec. 355.2(i)(4), with respect to 57 like products. These like products
are listed in Appendix A. The HTS item numbers which correspond to
these like products are listed in Appendix B, with appropriate
annotations as discussed above. Thus, the Department will conduct the
administrative review of entries of the merchandise listed in Appendix
B, made during the period January 1, 1991 through December 31, 1991,
and will issue appropriate instructions to Customs with respect to
these entries upon completion of the review.
This countervailing duty order was subject to section 753 of the
Uruguay Round Agreements Act. See Countervailing Duty Order;
Opportunity to Request a Section 753 Injury Investigation, 60 FR 27,963
(May 26, 1995). Because no domestic interested parties exercised their
right under section 753(a) of the Act to request an injury
investigation, the International Trade Commission made a negative
injury determination with respect to this order, pursuant to section
753(b)(4) of the Act. As a result, the Department revoked the order,
effective January 1, 1995, pursuant to section 753(b)(3)(B) of the Act,
and ordered Customs to terminate suspension of liquidation and to
refund all cash deposits made after January 1, 1995. Revocation of
Countervailing Duty Orders, 60 FR 40568 (August 9, 1995). Accordingly,
for the merchandise listed in Appendix B for which the Department is
not amending the effective date of revocation, the Department intends
to order Customs to liquidate shipments exported on or after January 1,
1991 and entered on or before December 31, 1991, in accordance with the
final results of the administrative review. We will not issue further
instructions with respect to suspension of liquidation or cash deposits
of estimated countervailing duties.
This determination and notice are in accordance with sections 751
(a) and (c) of the Act (19 U.S.C. 1675(a)(1) and 1675(c)).
Dated: December 9, 1996.
Jeffrey P. Bialos,
Acting Assistant Secretary for Import Administration.
Appendix A--C-549-401 Countervailing Duty Order on Certain Apparel From
Thailand Like Products for Which ACTWU Has Standing
------------------------------------------------------------------------
Like product code No. Like product description
------------------------------------------------------------------------
Cotton:
1............................... Handkerchiefs.
2............................... Gloves.
3............................... Hosiery.
4............................... Suit-type coats, M&B.
5............................... Other Coats, M&B.
8............................... Playsuits.
9............................... Knit Shirts, M&B.
10.............................. Knit Shirts & Blouses, WGI.
11.............................. Shirts, Not Knit, M&B.
14.............................. Sweaters.
15.............................. Trousers, M&B.
19.............................. Nightwear.
20.............................. Underwear.
21.............................. Other Apparel.
Wool:
22.............................. Gloves.
23.............................. Hosiery.
24.............................. Suit-type Coats, M&B.
25.............................. Other Coats, M&B.
26.............................. Coats, WGI.
28.............................. Knit Shirts & Blouses.
29.............................. Shirts & Blouses, Not Knit.
30.............................. Skirts.
31.............................. Suits, M&B.
33.............................. Sweaters, M&B.
35.............................. Trousers, M&B.
36.............................. Trousers, WGI.
37.............................. Other Wool Apparel.
Man-Made Fiber:
38.............................. Handkerchiefs.
39.............................. Gloves.
40.............................. Hosiery.
41.............................. Suit-type Coats, M&B.
42.............................. Other Coats, M&B.
45.............................. Playsuits.
46.............................. Knit Shirts, M&B.
48.............................. Shirts, Not Knit, M&B.
51.............................. Suits, M&B.
52.............................. Suits, WGI.
53.............................. Sweaters.
54.............................. Trousers, M&B.
58.............................. Nightwear.
59.............................. Underwear.
60.............................. Other Apparel.
Other Fabric:
61.............................. Handkerchiefs.
62.............................. Gloves.
63.............................. Hosiery.
64.............................. Suit-type Coats, M&B.
65.............................. Other Coats, M&B.
68.............................. Playsuits.
69.............................. Knit Shirts M&B.
71.............................. Shirts, Not Knit, M&B
74.............................. Suits, M&B.
76.............................. Sweaters, M&B.
78.............................. Trousers, M&B.
82.............................. Nightwear.
83.............................. Down-filled Coats, M&B.
85.............................. Underwear.
86.............................. Other Apparel.
------------------------------------------------------------------------
Appendix B--C-549-401 Countervailing Duty Order on Certain Apparel From
Thailand Harmonized Tariff Schedule Numbers
------------------------------------------------------------------------
HTS No. Annotation
------------------------------------------------------------------------
6101.2000.................... Coverage excludes garments having
embroidery or permanently affixed
applique work on the outer surface.
6101.3020
[[Page 398]]
6102.1000
6103.1920.................... Coverage limited to garments that would
be covered if separately entered.
6103.2200.................... Coverage limited to garments that would
be covered if separately entered.
6103.2300.................... Coverage limited to garments that would
be covered if separately entered.
6103.2910.................... Coverage limited to garments that would
be covered if separately entered.
6103.4210.................... Coverage excludes garments having
embroidery or permanently affixed
applique work on the outer surface.
6103.4315.................... Coverage excludes garments having
embroidery or permanently affixed
applique work on the outer surface.
6103.4910.................... Coverage excludes garments having
embroidery or permanently affixed
applique work on the outer surface.
6104.1320
6104.1915
6104.2100.10
6104.2100.30
6104.2100.40
6104.2100.60
6104.2100.80
6104.2200.10
6104.2200.60
6104.2200.80
6104.2200.90
6104.2300.22
6104.2910.60
6104.5100.................... Coverage excludes garments having
embroidery or permanently affixed
applique work on the outer surface.
6104.5310.................... Coverage limited to wool skirts.
6104.5910.................... Coverage limited to wool skirts; coverage
excludes girls' skirts or divided skirts
NOT having embroidery or permanently
affixed applique work on the outer
surface.
6104.6920.................... Coverage limited to wool trousers.
6105.1000
6105.2020
6106.1000
6109.1000
6109.9010.07
6109.9010.09
6109.9010.13
6109.9010.25
6109.9010.47
6109.9010.49................. Coverage excludes garments having
embroidery or permanently affixed
applique work on the outer surface.
6110.2020.................... Coverage excludes men's or boys' garments
having embroidery or permanently affixed
applique work on the outer surface.
6110.3030.05
6110.3030.10
6110.3030.15
6110.3030.20
6110.3030.25
6110.3030.40
6110.3030.50
6111.3040.................... Coverage limited to sweaters; coverage
excludes garments having embroidery or
permanently affixed applique work on the
outer surface.
6111.3050
6111.9040 Coverage limited to sweaters.
6111.9050
6112.1200.10
6112.1200.30
6112.1200.50
6112.1910.10................. Coverage limited to men's and boys'
garments that would be covered if
separately entered.
6112.1910.30................. Coverage excludes men's or boys' garments
that would be covered if separately
entered.
6112.1910.50................. Coverage excludes men's or boys' garments
that would be covered if separately
entered.
6112.2010.10................. Coverage excludes men's or boys' garments
that would be covered if separately
entered.
6112.2010.30................. Coverage limited to men's and boys'
garments that would be covered if
separately entered.
6112.2010.50................. Coverage excludes men's or boys' garments
that would be covered if separately
entered.
6112.2010.60................. Coverage excludes men's or boys' garments
that would be covered if separately
entered.
6112.2010.80................. Coverage limited to men's and boys'
garments that would be covered if
separately entered.
6114.2000
6114.3010.10
6114.3030
6201.1220
6201.1340
6201.9220
6203.1910.................... Coverage limited to garments that would
be covered if separately entered.
6203.2230.................... Coverage limited to garments that would
be covered if separately entered.
[[Page 399]]
6203.2300.................... Coverage limited to garments that would
be covered if separately entered.
6203.2920.................... Coverage limited to garments that would
be covered if separately entered.
6203.4240
6203.4340
6203.4920
6204.2300.................... Coverage limited to woolen garments that
would be covered if separately entered.
6204.2920.10
6204.2920.30
6204.2920.40
6204.2920.50................. Coverage limited to garments that would
be covered if separately entered.
6205.2020
6208.2200
6208.9200.30
6208.9200.40
6209.2050
------------------------------------------------------------------------
Appendix C--C-549-401 Countervailing Duty Order on Certain Apparel From
Thailand Like Products for Which ACTWU Does Not Have Standing
------------------------------------------------------------------------
Like product code No. Like product description
------------------------------------------------------------------------
Cotton:
6............................... Coats, WGI.
7............................... Dresses.
12.............................. Blouses, Not Knit, WGI.
13.............................. Skirts.
16.............................. Trousers, WGI.
17.............................. Brassieres, etc.
18.............................. Dressing Gowns.
Wool:
27.............................. Dresses.
32.............................. Suits, WGI.
34.............................. Sweaters, WGI
Man-Made Fiber:
43.............................. Coats, WGI.
44.............................. Dresses.
47.............................. Knit Shirts & Blouses, WGI.
49.............................. Blouses, Not Knit, WGI.
50.............................. Skirts.
55.............................. Trousers, WGI.
56.............................. Brassieres, etc.
57.............................. Dressing Gowns.
Other Fabric:
66.............................. Coats, WGI.
67.............................. Dresses.
70.............................. Knit Shirts & Blouses, WGI.
72.............................. Blouses, Not Knit, WGI.
73.............................. Skirts.
75.............................. Suits, WGI.
77.............................. Sweaters, WGI.
79.............................. Trousers, WGI.
80.............................. Brassieres, etc.
81.............................. Dressing Gowns.
84.............................. Down-filled Coats, WGI.
Other Like:
87.............................. Flatgoods, handbags, and luggage.
------------------------------------------------------------------------
Appendix D--C-549-401 Countervailing Duty Order on Certain Apparel From
Thailand Harmonized Tariff Schedule Numbers
(For which revocation will be amended from January 1, 1995 to January
1, 1991)
4202.1240 6104.2910.70 6112.2010.90
4202.1260 6104.3100 6113.0000.30
4202.1280 6104.3310 6114.3010.20
4202.2245 6104.3320 6202.1220
4202.2260 6104.3910 6202.1340
4202.2270 6104.4200 6202.9220
4202.2280 6104.4320 6202.9345
4202.3240 6104.4420 6202.9350
4202.3295 6104.5200 6204.1200
4202.9215 6104.5320 6204.2230
4202.9220 6104.6220 6204.2920.15
4202.9230 6104.6320 6204.2920.20
4202.9260 6106.2020 6204.2920.25
4202.9290 6109.9010.50 6204.3220
6102.3010 6109.9010.60 6204.3350
6102.3020 6109.9010.65 6204.3930
6104.1200 6109.9010.70 6204.4230
6104.2100.70 6109.9010.75 6204.4340
6104.2200.30 6109.9010.90 6204.4440
6104.2200.40 6110.3030.30 6204.5220
6104.2200.50 6110.3030.35 6204.5330
6104.2300.10 6110.3030.45 6204.5930
6104.2300.14 6110.3030.55 6204.6240
6104.2300.16 6111.3010 6204.6335
6104.2300.20 6111.3020 6204.6925
6104.2300.24 6111.3030 6206.3030
6104.2300.26 6111.9010 6206.4030
6104.2300.30 6111.9020 6208.9200.10
6104.2300.32 6111.9030 6208.9200.20
6104.2300.34 6112.1200.20 6209.2010
6104.2300.36 6112.1200.40 6209.2020
6104.2300.40 6112.1200.60 6209.2030
6104.2300.42 6112.1910.20 6210.3010
6104.2910.10 6112.1910.40 6210.501020
6104.2910.20 6112.1910.60 6212.1050*
6104.2910.30 6112.2010.20 6212.1090*
6104.2910.40 6112.2010.40
6104.2910.50 6112.2010.70
*In the amended HTS list, published May 17, 1994, 6212.1050 and
6212.1090 were not listed. These two numbers replaced 6212.1010 and
6212.1020 in early 1995.
[FR Doc. 97-72 Filed 1-2-97; 8:45 am]
BILLING CODE 3510-DS-P
