[Federal Register Volume 60, Number 32 (Thursday, February 16, 1995)]
[Notices]
[Pages 9005-9008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3960]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-580-008]
Color Television Receivers From the Republic of Korea;
Preliminary Results and Termination in Part of Antidumping Duty
Administrative Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Preliminary Results and Termination in Part of
Antidumping Duty Administrative Reviews.
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SUMMARY: In response to requests by interested parties, the Department
of Commerce (the Department) is conducting administrative reviews of
the antidumping duty order on color television receivers (CTVs) from
the Republic of Korea. The reviews (sixth and seventh, respectively)
cover exports of this merchandise to the United States during the
periods April 1, 1988 through March 31, 1989, and April 1, 1989 through
March 31, 1990. The review of Quantronics Manufacturing
[[Page 9006]] Company is being terminated in the sixth (88-89) review.
Based on our review of the remainder of these exports, we preliminarily
find the existence of dumping margins for all reviewed companies with
the exception of Samsung Electronics Co., Ltd. (Samsung), which had a
de minimis margin in both of our reviews. We invite interested parties
to comment on these preliminary results.
3EFFECTIVE DATE: February 16, 1995.
FOR FURTHER INFORMATION CONTACT: Anne D'Alauro or Richard Herring,
Office of Countervailing Compliance, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW., Washington, DC 20230; telephone:
(202) 482-2786.
SUPPLEMENTARY INFORMATION:
Background
On March 31, 1989, the Department published in the Federal Register
a notice of ``Opportunity to Request Administrative Review'' (54 FR
13211) of the antidumping duty order on CTVs from the Republic of Korea
for the period April 1, 1988 through March 1, 1989 (sixth review). The
United Electrical Workers of America, Independent, International
Brotherhood of Electrical Workers, International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers, AFL-CIO, and the
Industrial Union Department, AFL-CIO (the Unions), the petitioners in
this proceeding, Zenith Electronics Corporation, a domestic interested
party, two respondents, Cosmos Electronics Company Ltd. (Cosmos), and
Samsung, and an importer of color television receivers from Tongkook
General Electronics Co., Ltd (Tongkook), and Samwon Electronics, Inc.
(Samwon), requested an administrative review of the antidumping duty
order for this period. For the subsequent (seventh) review period,
April 1, 1989 through March 31, 1990, the opportunity notice was
published on April 10, 1990 (55 FR 13302). With the exception of the
importer of Tongkook and Samwon, the same interested parties requested
a review of the seventh period. In addition, the respondent Goldstar
Company, Ltd. (Goldstar), also requested a review of its exports for
the seventh period.
On May 24, 1989, the Department published a notice of initiation of
the sixth review which covered seven companies including Tongkook,
Samwon, Cosmos, Goldstar, Daewoo Electronics Co., Ltd. (Daewoo),
Quantronics Manufacturing Company, Ltd. (Quantronics), and Samsung. On
June 1, 1990, we published a notice of initiation for the seventh
review (55 FR 22366) for the same seven manufacturers.
The requests for review with respect to Goldstar for both periods
were withdrawn on May 23, 1994. Because all the requesting parties for
these reviews withdrew their requests for Goldstar, on June 29, 1994,
the Department terminated the reviews of Goldstar (59 FR 33486)
pursuant to 19 CFR Sec. 353.22(a)(5). On August 19, 1994, the final
results of review with respect to Daewoo for both periods were
separately issued (59 FR 40519). The request for review with respect to
Quantronics for the seventh period was timely withdrawn pursuant to
section 353.22(a)(5) and was terminated on July 31, 1990 (55 FR 31089).
On October 7, 1994, the request for review of Quantronics made by
Zenith Electronics Corporation for the sixth period was withdrawn.
Pursuant to 19 CFR Sec. 353.22(a)(5), the Department has the discretion
to extend the period during which requests for review may be withdrawn.
Because withdrawal of the request does not burden the Department or
unfairly prejudice another party, in this notice we are terminating the
sixth administrative review with respect to Quantronics pursuant to 19
CFR Sec. 353.22(a)(5).
The Department is now conducting these administrative reviews in
accordance with section 751 of the Tariff Act of 1930, as amended (the
Tariff Act).
Scope of Reviews
Imports covered by this review include CTVs, complete and
incomplete, from the Republic of Korea. The order covers all CTVs
regardless of tariff classification. During the period of review, the
subject merchandise was classified under item numbers 684.9246,
684.9248, 684.9250, 684.9252, 684.9253, 684.9255, 684.9256, 682. 9258,
684.9262, 684.9263, 684.9270, 684.9275, 684.9655, 684.9656, 684.9658,
684.9660, 684.9663, 684.9864, 684.9866, 687.3512, 687.3513, 687.3513,
687.3514, 687.3516, 687.3518, and 687.3520 of the Tariff Schedules of
the United States Annotated (TSUSA). This merchandise is currently
classifiable under item numbers 8528.10.80, 8529.90.15, 8529.90.20, and
8540.11.00 of the Harmonized Tariff Schedule (HTS). Although the HTS
and TSUSA item numbers are provided for convenience and Customs
purposes, our written description of the scope remains dispositive.
Best Information Available (BIA)
Two companies, Tongkook and Samwon, failed to respond to the
original questionnaires sent by the Department for both review periods.
One firm, Cosmos, failed to respond to our supplemental questionnaire
for both review periods after going out of business. In deciding what
to use as BIA, 19 CFR 353.37(b) provides that the Department may take
into account whether a party fails to provide requested information.
When a company fails to provide the information requested in a timely
manner, or otherwise significantly impedes the Department's review, the
Department considers that company to be uncooperative, and generally
assigns to that company the higher of (a) the highest rate for any
company from any previous review or the original investigation, or (b)
the highest rate for a responding firm with shipments during the
current period. See Final Results of Antidumping Duty Administrative
Review, Antifriction Bearings (Other than Tapered Roller Bearings) and
Parts Thereof from the Federal Republic of Germany, et al. (56 FR
31692; July 11, 1994). See also Allied-Signal Aerospace Co. v. United
States, 996 F.2d 1195, 1191-92 (Fed. Cir. 1993), and Krupp Stahl AG et
al. v. United States, 822 F. Supp. 789 (CIT 1993). For Tongkook and
Samwon, the companies which failed to provide any information to the
Department, we have used the highest rate from the original less-than-
fair value (LTFV) investigation of 16.57 percent as their BIA rate
because this rate is higher than the highest rate in the current
reviews. For Cosmos, we have instead applied ``second-tier'' BIA, used
for cooperative companies, because Cosmos provided reasonable and
timely responses until the time of its business failure. Second-tier
BIA rates comprise the higher of (1) the highest rate (including the
``all others'' rate) ever applied to that company from any prior review
or the LTFV investigation, or (2) the highest rate calculated for any
other company in the current review. Id. Because the only previous rate
of 2.24 percent calculated for Cosmos from the immediately preceding
review is higher than the rates calculated in the current reviews,
Cosmos has been assigned a ``second-tier'' BIA rate of 2.24 percent.
Request for Revocation
On November 12, 1993, Samsung submitted a request for revocation in
the sixth administrative review which it based on having established,
in conjunction with its anticipated de [[Page 9007]] minimis result in
the sixth review, three years of sales at not LTFV. Pursuant to
Sec. 353.25(b) of the Department's regulations, parties must submit
their revocation request during the opportunity month for the
administrative review which the respondent reasonably believes could
establish their eligibility for revocation. See Exportaciones Bochica/
Floral v. United States, 802 F. Supp. 447, aff'd without opinion, 996
F.2d 317 (1993). Therefore, in Samsung's case, even though the 1986-
1987 (fourth) and the 1987-1988 (fifth) reviews had not been completed,
Samsung should have filed its request during April of 1989, the
opportunity month for the sixth review period. Such a filing would have
preserved its right to revocation in the sixth review. The Department
has carefully considered Samsung's reasons for failing to file their
revocation request in a timely manner. One reason involves their
inability to speculate in April of 1989 on unknown results in reviews
four and five. However, unknown results in the previous reviews is not
a valid reason for delaying a request for revocation. The regulation
requires the revocation request to be filed in the anniversary month of
the order if it is to be considered in the review requested that month.
Id.
In addition, Samsung argues that although reviews four and five
ultimately resulted in de minimis rates, an assumption would have had
to be made that the litigation (in the first administrative review)
involving the tax pass-through methodology, and affecting reviews four
and five, would be resolved in a way that would result in calculation
and allocation methodologies favorable to Samsung. It argues that
because the issue regarding the correct tax methodology was not
officially resolved until September 1993, it was not until that time
that recognition could actually be given to final results in the fourth
and fifth reviews. The Department, however, is not persuaded by
Samsung's argument that the unknown results of ongoing litigation is an
acceptable explanation for tardiness. The Department has consistently
indicated that it is not its policy to await the results of pending
court actions in making such decisions. See, Certain Fresh Cut Flowers
from Colombia; Final Results of Antidumping Duty Administrative Review,
and Notice of Revocation of Order (in Part) (59 FR 15159; March 31,
1994). In any case, given that the final results of reviews four and
five were known to be de minimis on June 27, 1990 and March 27, 1991,
respectively, the uncertain effect of litigation regarding the tax
pass-through methodology on these results is an unconvincing
explanation for Samsung's failure to file its revocation request until
approximately two-and-a-half years after the de minimis results. For
these reasons, we are preliminarily denying Samsung's revocation
request.
Even more recently, on November 3, 1994, Samsung submitted a
request for revocation in the seventh administrative review. For the
same reasons discussed above, and the fact that the Department has not
conducted the verification required for revocation under
Sec. 353.25(c)(2)(ii), the Department is denying Samsung's revocation
request for the seventh administrative review.
United States Price (USP)
For Samsung, we based USP on purchase price in accordance with
section 772(b) of the Tariff Act when CTVs were sold to unrelated
purchasers in the United States prior to importation into the United
States, and because exporter's sales price (ESP) methodology was not
indicated by other circumstances. We based Samsung's USP on ESP as
defined in section 772(c) of the Tariff Act when sales were made to
unrelated parties after importation into the United States.
We calculated purchase price based on the packed, delivered, free
on board (FOB) U.S. port or FOB Korea prices to unrelated customers in
the United States. We made deductions, where applicable, for foreign
inland freight, forwarding, EIAK export fees, ocean freight, Korean
customs clearance fees, marine insurance, U.S. brokerage charges,
wharfage, and U.S. duties. Where applicable, we made an addition for
import duties collected and rebated on imported raw materials used in
merchandise exported to the United States.
We calculated ESP based on the packed, delivered or FOB U.S.
warehouse prices to unrelated customers in the United States. We made
deductions, where applicable, for foreign inland freight, forwarding,
EIAK export fees, ocean freight, customs clearance fees, marine
insurance, U.S. brokerage charges, wharfage, U.S. duties, U.S. inland
freight to the warehouse and for delivery to customers, royalties,
discounts and rebates, commissions to unrelated parties, warranty
expenses, return set losses, advertising, credit, and indirect selling
expenses. Where applicable, we made an addition for import duties
collected and rebated on imported raw materials used in merchandise
exported to the United States.
We adjusted USP for value-added taxes in accordance with our
practice as outlined in Silicon Manganese from Venezuela, Preliminary
Determination of Sales at Less Than Fair Value, 59 FR 31204, June 17,
1994.
There were no other adjustments claimed or allowed.
Foreign Market Value (FMV)
In calculating FMV, the Department used home market price, as
defined in section 773 of the Tariff Act, where sufficient quantities
of such or similar merchandise were sold in the home market to provide
a basis for comparison. Where sufficient quantities of such or similar
merchandise for particular models were not sold in the home market, we
used constructed value in accordance with section 773(a)(2) of the
Tariff Act.
Home market price was based on the packed, delivered prices in the
home market. Where applicable, we made deductions for inland freight,
forwarding, discounts, rebates, credit, technical services, royalties,
advertising and promotion, as well as adjustments for differences in
merchandise and packing. We adjusted FMV for value-added taxes in
accordance with our practice as outlined in Silicon Manganese from
Venezuela, Preliminary Determination of Sales at Less Than Fair Value,
59 FR 31204, June 17, 1994. The company's warehousing expense could not
be tied directly to either a particular customer or sales of the
subject merchandise, and therefore we treated it as an indirect selling
expense.
In light of the Court of Appeals for the Federal Circuit's decision
in Ad Hoc Committee of AD-NM-TX-FL Producers of Gray Portland Cement v.
United States, 13 F.3d 398 (Fed. Cir. 1994), the Department no longer
can deduct home market movement charges from FMV pursuant to its
inherent power to fill in gaps in the antidumping statute. We instead
will adjust for those expenses under the circumstance-of-sale (COS)
provision of 19 CFR 353.56 and the ESP offset provision of 19 CFR
353.56(b) (1) and (2), as appropriate, in the manner described below.
When USP is based on purchase price, we only adjust for home market
movement charges through the COS provision of 19 CFR 353.56. Under this
adjustment, we capture only direct selling expenses, which include
post-sale movement expenses and, in some circumstances, pre-sale
movement expenses. Specifically, we will treat pre-sale movement
expenses as direct expenses if those expenses are directly related to
the home market sales of the merchandise under consideration.
[[Page 9008]] Moreover, in order to determine whether pre-sale movement
expenses are direct, the Department will examine the respondent's pre-
sale warehousing expenses, since the pre-sale movement charges incurred
in positioning the merchandise at the warehouse are, for analytical
purposes, inextricably linked to pre-sale warehousing expenses. If the
pre-sale warehousing constitutes an indirect expense, the expense
involved in getting the merchandise to the warehouse also must be
indirect; conversely, a direct pre-sale warehousing expense necessarily
implies a direct pre-sale movement expense.
When USP is based on ESP, the Department uses the COS adjustment in
the same manner as in purchase price situations. Additionally, under
the ESP offset provision set forth in 19 CFR 353.56(b) (1) and (2), we
will adjust for any pre-sale movement charges which are treated as
indirect selling expenses. Accordingly, because the Department has
preliminarily determined that pre-sale warehousing costs are an
indirect expense, the Department is also treating pre-sale movement
costs as an indirect expense. Therefore, no COS adjustment has been
made for these costs. For ESP sales, an adjustment for indirect costs
has been made under the ESP offset provision.
For ESP comparisons, we also deducted indirect selling expenses
from FMV in an amount not exceeding the indirect selling expenses and
commissions incurred in the U.S. market. For purchase price
comparisons, we added U.S. direct selling expenses including U.S.
advertising, credit, warranties and royalties to FMV. Indirect selling
expenses were deducted from FMV in an amount not exceeding the amount
of commissions paid on U.S. purchase price sales in accordance with 19
CFR 353.56(b)(1).
We calculated constructed value for Samsung by adding material and
fabrication costs, selling, general and administrative expenses (SG&A),
profit, and U.S. packing in accordance with section 773(e) of the
Tariff Act. Since, in both reviews, actual SG&A expenses were greater
than the statutory minimum of 10 percent of the sum of materials and
fabrication costs, we used Samsung's actual SG&A expenses. We used the
statutory minimum of eight percent for profit in the sixth review in
accordance with section 773(e) of the Tariff Act. In the seventh
review, we used Samsung's actual profit experience since it was greater
than eight percent of the cost of production.
No other adjustments were claimed or allowed.
Preliminary Results of the Reviews
As a result of our review, we preliminarily determine that the
weighted-average dumping margins for the periods are:
------------------------------------------------------------------------
Margin percentage
-----------------------------
Manufacturer/exporter 04/01/88-3/31/ 04/01/89-3/31/
89 90
------------------------------------------------------------------------
Cosmos.................................... 2.24 2.24
Quantronics............................... Terminated Terminated
Samsung................................... 0.02 0.09
Samwon.................................... 16.57 16.57
Tongkook.................................. 16.57 16.57
------------------------------------------------------------------------
Case briefs and/or written comments from interested parties may be
submitted no later than 30 days after the date of publication of this
notice. Rebuttal briefs and rebuttals to written comments, limited to
issues raised in the case briefs and comments, may be filed no later
than 37 days after the date of publication of this notice.
Within 10 days of the date of publication of this notice,
interested parties to this proceeding may request a disclosure and/or a
hearing. The hearing, if requested, will take place no later than 44
days after publication of this notice. Persons interested in attending
the hearing should contact the Department for the date and time of the
hearing.
The Department will subsequently publish the final results of this
administrative review including the results of its analysis of issues
raised in any such written comments or at a hearing.
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. The Department
will issue appraisement instructions directly to the Customs Service.
Furthermore, the following deposit requirements will be effective
upon publication of the final results of this administrative review for
all shipments of the subject merchandise from Korea entered, or
withdrawn from warehouse, for consumption on or after the publication
date, as provided by section 751(a)(1) of the Tariff Act: (1) The cash
deposit rate for all companies will continue to be the company-specific
rate published in the final determination covering the most recent
period; (2) for merchandise exported by manufacturers or exporters not
covered in this review but covered in previous reviews or the original
LTFV investigation, the cash deposit rate will continue to be the
company-specific rate published in the final determination covering the
most recent period; (3) if the exporter is not a firm covered in this
review, previous reviews, or the original investigation, but the
manufacturer is, the cash deposit rate will be the rate established for
the most recent period for the manufacturer of the merchandise; (4) the
cash deposit rate for all other manufacturers or exporters will be
13.90 percent, the ``all other'' rate established in the original LTFV
investigation by the Department (49 FR 7620, March 1, 1984), in
accordance with the decisions of the Court of International Trade in
Floral Trade Council v. United States, 822 F. Supp. 766 (CIT 1993), and
Federal-Mogul Corporation v. United States, 822 F. Supp. 782 (CIT
1993).
This notice serves as a preliminary reminder to importers of their
responsibility under 19 CFR 353.26 to file a certificate regarding the
reimbursement of antidumping duties prior to liquidation of the
relevant entries during this review period. Failure to comply with this
requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This administrative review and notice are in accordance with
section 751(a)(1) of the Tariff Act, as amended (19 U.S.C. 1675(a)(1))
and 19 CFR 353.22.
Dated: February 8, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-3960 Filed 2-15-95; 8:45 am]
BILLING CODE 3510-DS-P
