[Federal Register Volume 61, Number 25 (Tuesday, February 6, 1996)]
[Notices]
[Pages 4408-4415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2369]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-580-008]
Color Television Receivers from the Republic of Korea; Final
Results of Antidumping Duty Administrative Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Final Results of Antidumping Duty Administrative
Reviews.
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SUMMARY: On February 16, 1995, the Department of Commerce (the
Department) published the preliminary results of its administrative
reviews of the antidumping duty order on color television receivers
(CTVs) from the Republic of Korea covering exports of this merchandise
to the United States by certain manufacturers. Based on our preliminary
review of these exports during the period April 1, 1988 through March
31, 1989 and April 1, 1989 through March 31, 1990, we found margins for
all reviewed companies with the exception of respondent Samsung
Electronics Co., Ltd. (Samsung), which has a de minimis margin in both
of our reviews. We invited interested parties to comment on the
preliminary results. We received comments from the Independent Radionic
Workers of America; the International Union of Electronic, Electrical,
Technical, Salaried, and Machine Workers, AFL-CIO; the International
Brotherhood of Electrical Workers of America; and the Industrial Union
Department, AFL-CIO (petitioners). We also received comments from
Samsung and rebuttals to Samsung's comments from Zenith Electric
Corporation (Zenith), a domestic interested party. We have now
completed our final results of review and determine that the results
with respect to Samsung remain de miminis; those with respect to the
other manufacturers have not changed from those presented in our
preliminary results.
EFFECTIVE DATE: February 6, 1996.
FOR FURTHER INFORMATION CONTACT: Anne D'Alauro or Richard Herring,
Office of Countervailing Compliance, International Trade
Administration, U.S. Department of Commerce, Washington, D.C. 20230;
telephone: (202) 482-2786.
SUPPLEMENTARY INFORMATION:
Background
On February 16, 1995 (60 FR 9005), the Department published in the
Federal Register the preliminary results of its administrative reviews
of the antidumping duty order on CTVs from the Republic of Korea (49 FR
18336; April 30, 1984) covering exports of this merchandise to the
United States by Samsung, Cosmos Electronics Company Ltd. (Cosmos),
Tongkook General Electronics Co., Ltd (Tongkook), and Samwon
Electronics, Inc. (Samwon). For administrative convenience, we combined
the results of two reviews covering the periods April 1, 1988 through
March 31, 1989, and April 1, 1989 through March 31, 1990. We have now
completed these administrative reviews in accordance with section 751
of the Tariff Act of 1930, as amended (1988)(the Act).
Scope of the Review
Imports covered by these reviews 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,
[[Page 4409]]
684.9255, 684.9256, 684.9258, 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, 687.3514, 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 8528.10.0800,
8528.10.11.00, 8528.10.13.00, 8528.10.17, 8528.10.19, 8528.10.24,
8528.10.28, 8528.10.34, 8528.10.38, 8528.10.44, 8528.10.48, 8528.10.54,
8528.10.58, 8528.10.61, 8528.10.63, 8528.10.67, 8528.10.69, 8528.10.71,
8528.10.73, 8528.10.77, 8528.10.79, 8529.90.03, 8529.90.06, and
8540.11.10 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.
Applicable Statute and Regulations
The Department is conducting this administrative review in
accordance with section 751(a) of the Act. Unless otherwise indicated,
all citations to the statute and to the Department's regulations are in
reference to the provisions as they existed on December 31, 1994.
Analysis of Comments Received
We invited interested parties to comment on our preliminary results
of the reviews. We received comments from the petitioners, and Samsung,
and rebuttal comments from Zenith.
Petitioners' Comments With Respect to Both Reviews
Comment 1: Petitioners argue that the Department should deny the
Installment Sales Incentive (ISI) rebate claimed by Samsung as a direct
selling expense deduction on its home market sales. Petitioner argues
that since Samsung failed to report interest received from installment
sales, the Department should either request such information or
calculate an amount from information currently available in Samsung's
submitted questionnaire responses.
Samsung points out that in order to maximize its sales, it did not
charge interest to consumers, either directly or indirectly, on
installment sales made by its dealers. Samsung states that it merely
provided a collection service which Samsung's numerous small
distributors were unable to provide on a cost effective basis.
Department's Position: The Department verified the response
submitted by Samsung in the 1988-89 (sixth) administrative review and
examined the operation of the ISI rebate program. We verified that
customers paid Samsung directly in installments and that no interest
was earned on these transactions. Therefore, we have allowed the ISI
rebate as a direct selling expense.
Comment 2: Petitioners fault the calculation of U.S. indirect
selling expenses reported by Samsung Electronics America (SEA) because
it included certain unacceptable advertising expenses. As a result of
Samsung's inadequate explanation of why it should include such
expenses, petitioners advocate that the Department revise the
calculation of U.S. indirect selling expenses incurred by SEA by
excluding these contested expenses.
Samsung counters that, in the sixth review, the expense in question
resulted from an initial bookkeeping error and its subsequent
correction. Since the overall advertising expense total remains
unchanged, the total advertising expense used for allocation remains
unaffected.
In the seventh review, the expense in question was also a
correction of an overstatement found to have been made in the sixth
review.
Department's Position: We agree with the respondent that the
disputed expense in review six does not affect the total allocated
amount for advertising included in SEA's indirect selling expense
calculation. Similarly, the Department accepts the correction made
within the context of the seventh review. Therefore, no changes have
been made in these final results with respect to Samsung's reported
advertising expenses.
Comment 3: Petitioners argue that the Department should recalculate
the interest rate that it used to calculate Samsung's U.S. credit
expenses because it included an asset item from its daily loan balance
termed ``LIBOR & Cash.'' Petitioners question the inclusion of an asset
in the daily loan balance as well as why it should incur interest on an
asset. Because these amounts increase the denominator in the interest
calculation, the interest rate used to calculate U.S. credit expenses
is understated. In addition, the petitioners request the use of 360
days in both calculations used to derive the ``rate of credit
expense.''
Samsung states that petitioners have misinterpreted the line item
``LIBOR & Cash'', which, in fact, refers to Samsung's LIBOR loans and
cash loans. Thus, Samsung did not calculate interest on an asset item.
Furthermore, using 360 days in both calculations to derive the rate of
credit expense yields the same rate as was originally reported and used
by the Department.
Department's Position: We agree with the respondent and have made
no changes to Samsung's reported credit expense rate.
Comment 4: Petitioners argue that Samsung has not reported the
amount for its imputed cost of carrying inventory on its Exporter Sales
Prices (ESP) transactions. Because Samsung should not benefit from its
failure to report relevant expenses, petitioners advocate that the
Department calculate an amount to account for the inventory carrying
expense, and deduct the amount from the price of its ESP sales.
Samsung notes that in its supplemental questionnaire response,
Samsung reported inventory carrying costs incurred with respect to its
ESP sales. The overall indirect selling expense ratio was increased
accordingly to that which was used by the Department in its preliminary
results calculations for these reviews.
Department's Position: We agree with Samsung that inventory
carrying costs were reported and included in the amount deducted for
indirect selling expenses for all ESP sales transactions in both the
sixth and seventh reviews (see submissions of Samsung dated March 20,
1991 at 6-7 and August 9, 1991 at 1-3, respectively).
Comment 5: Petitioners state that the Department should calculate
an amount for credit expenses based on the estimated credit period for
Samsung's purchase price sales which were sold ``at sight.''
Petitioners argue that, since the time between the date that CTVs were
shipped from Samsung's factory and the date that Samsung was credited
by its bank for payment can easily run as long as 10 to 14 days,
Samsung should be required to report this time period and its
corresponding credit expense.
Samsung argues that the period from the date the CTVs leave the
factory until the date the CTVs are loaded onto a ship is an inventory
carrying cost rather than a credit expense. Since inventory carrying
costs are indirect selling expenses, and indirect selling expenses are
not considered in these purchase price transactions, there is no need
for the Department to impute an expense for this portion of the period.
Moreover, as clearly set forth in Certain Iron Construction Castings
from Brazil (51 FR 9477, 9479; March 19, 1986), it is not the
Department's policy to calculate a credit expense when the terms of
sale are letter of credit ``at sight.'' Therefore, the Department
should also not impute any credit expense for the period from the date
when Samsung receives the
[[Page 4410]]
carrier's bill of lading until the date when the bank credits the
payment.
Department's Position: It is Department policy that the credit
period begins with shipment of the merchandise to the customer from the
foreign producer's warehouse, whether located on the production site or
at an off-site warehouse location, and ends at the time the producer
receives payment. We agree with Samsung that it is not the Department's
policy to calculate a credit expense for ``at sight'' sales, since
generally for these sales, payment by the bank is effected immediately
upon presentation of the sales documentation. We reviewed the sales
verification documents collected in the sixth review to determine the
actual time between the date of shipment and the date of payment. These
documents indicate that there is generally only a one day lag between
the two events. Therefore, no credit expense is applicable.
Comment 6: Petitioners state that the Department did not follow its
normal practice which is to adjust constructed value (CV) for home
market selling expenses based on the weighted-average direct and
indirect selling expenses for all home market sales. Instead the
Department relied on ratios reported by Samsung for direct and indirect
selling expenses which the petitioner alleges that Samsung failed to
adequately explain and which differ from that reported in the home
market sales tape. Accordingly, petitioners argue the Department should
calculate the selling expense adjustments from the reported home market
sales tape.
Samsung responds that the methodology for deriving the expense
ratios reported for making adjustments to CV were individually
explained in its response. In response to petitioners' additional point
that the ratios do not correspond to the information contained in the
home market sales tape, such a comparison is fundamentally flawed. The
home market sales expenses reported in the sales tape are actual and
sales-specific whereas the reported CV expense ratio is based on the
average expense amount relative to the cost of home market sales.
Samsung argues that there is simply no way that this information can be
directly or meaningfully compared. Lastly, Samsung states that the
underlying methodology was fully reviewed and verified by the
Department.
Department's Position: We reviewed, and verified in the sixth
administrative review, the methodology used by Samsung for reporting
its home market selling expenses for CV. These expense amounts properly
reflect Samsung's selling experience for all home market sales of CTVs.
As Samsung explained, these ratios were calculated using the cost of
sales. Since petitioner compares these average amounts to the sales-
specific amounts calculated using sales revenue, it is not surprising
that the two results differ. In fact, unless sales are made below the
cost of manufacture, an allocation based on the cost of sales would
always yield a higher percentage than would an allocation of the same
amount based on the value of sales. The Department finds no
inaccuracies in Samsung's calculation of the weighted-average direct
and indirect selling expenses for all home market sales of CTVs
reported for purposes of CV.
Comment 7: Petitioners contend that to the extent that SEA is the
importer of record for the CTV entries concerned and consequently is
obligated for payment of antidumping duties on those entries,
absorption or reimbursement will have occurred contrary to the statute
and regulations at 19 CFR section 353.26. Therefore, the antidumping
duties should be assessed and collected a second time. According to
petitioners, the subsidiary relationship between Samsung and SEA
shields the first unrelated buyer in the United States from the
remedial mechanism of the antidumping duties and thereby wrongly erodes
the purpose of the law.
Petitioners, therefore, ask that the Department reconsider its past
reluctance to find absorption or reimbursement when antidumping duties
are to be paid by an importing party that is related to the foreign
producer. Although one court decision, Outokumpu Copper Rolled Products
AB v. United States, 829 F. Supp. 1371, 1382-84 (CIT 1993), has
supported the Department's position, the petitioners argue that the
grounds relied upon by the court are not persuasive. First, the court
saw the foreign producer and its related party in the United States as
having separate corporate identities with no inappropriate financial
intermingling, in spite of the fact that these companies were
considered a single company in the classification of their United
States sales and the computation of dumping margins on those sales.
Petitioners ask why a subsidiary of a foreign producer that has been
found to be dumping should be permitted to pay antidumping duties as
the importer of record and characterized as a separate importer rather
than the foreign respondent's controlled subsidiary serving to shield
unrelated customers in the United States from antidumping duties.
Second, petitioners claim that the court concluded that no absorption
or reimbursement had taken place because the cash deposits of estimated
duties should not be ``recast'' into duties actually paid. However,
whenever the related party is the importer of record, that related
party is ultimately responsible for the payment of any antidumping
duties due. Petitioners conclude that, to the extent that the
Department calculates margins of dumping on Samsung's CTVs in these
reviews, those duties to be paid by SEA should be paid a second time.
Samsung argues that petitioners' attempts at distinguishing the
Outokumpu decision, which is governing precedent and should be applied
here, fails because their analysis is neither grounded in the statute
or the regulations. The Outokumpu decision held that mere allegations
that the foreign producer and the U.S. importer are related and that
the importer paid the duties are not sufficient to satisfy 19 CFR
section 353.26(a). In order for the reimbursement provision to apply,
there must be ``evidence on the record that an agreement to reimburse
those duties exists,'' that the foreign producer reimbursed the
importer, or that the importer paid duties on behalf of the foreign
producer. Samsung asserts that since no such evidence has been
provided, the Department should dismiss this argument.
Department's Position: The imposition of antidumping duties is
intended to provide relief to U.S. industries injured by unfair trade
practices of foreign competitors. In effect, antidumping duties raise
prices of subject merchandise to importers, thereby providing a level
playing field upon which injured U.S. industries can compete. The
remedial effect of the law is defeated, however, where exporters
themselves pay antidumping duties, or reimburse importers for such
duties. To ensure that the remedial effect of the law is not
undermined, the Department has authority to reduce the U.S. price (used
to determine dumping) by the amount of any duty paid, or reimbursed, by
the producer or reseller, thereby increasing the amount of the duty
ultimately collected. See 19 CFR 353.26.
The Department's regulation on reimbursement applies to both
purchase price and ESP transactions, notwithstanding our statement to
the contrary in Final Results of Antidumping Duty Administrative
Reviews and Revocation in Part of Antidumping Duty Order, 58 FR 39729
(July 26, 1993) (review of the orders on antifriction bearings (AFBs)
from various countries). Contrary to our longstanding interpretation,
in that AFBs review we stated that section 353.26 did not apply to ESP
transactions
[[Page 4411]]
because the exporter and related importer are treated as a single
entity for margin calculation purposes. We concluded that because the
related companies are considered to be a single entity, we could not
treat the two companies as separate entities for purposes of duty
payment.
We have reconsidered our statement in AFBs and find it to be
inconsistent with both the plain language of the regulations and the
regulatory history. See, e.g., 19 CFR 353.41 (defining U.S. price as
the purchase price or the ESP). We also note that the statement of
administrative action of the URAA confirms that the Department has
``full authority under its current regulations (19 CFR 353.26) to
increase the duty when an importer directly pays the duties due, or
reimburses the importer, whether independent or affiliated, for the
importer's payment of duties.'' (Emphasis added.) SAA at 216.
The fact that margins are calculated based on prices to the first
unrelated party in the United States does not warrant an assumption
that there cannot be reimbursement of antidumping duties when the
exporter and importer are related. How antidumping duties are
calculated and who, under the law, is responsible for paying those
duties are separate and distinct issues. The contrary reasoning in AFBs
is inconsistent with the underlying policy of the reimbursement
regulation. Accordingly, we are reaffirming our original view that
reimbursement, within the meaning of the regulation, takes place
between related parties if the evidence demonstrates that the exporter
directly pays antidumping duties for the related importer or reimburses
the importer for such duties. Brass Sheet and Strip from the
Netherlands, 57 FR 9534, 9537 (March 19, 1992); Brass Sheet and Strip
from the Sweden, 57 FR 2706, 2708 (January 23, 1992); Brass Sheet and
Strip from Korea, 54 FR 33257, 33258 (August 14, 1989).
This position has been upheld by the Court of International Trade
in Outokumpu. This does not imply that foreign exporters automatically
will be assumed to have reimbursed related U.S. importers for
antidumping duties by virtue of the relationship between them. While we
recognize that all transactions between related parties must be
scrutinized with care, the relationships between such parties are too
complex to justify such an assumption. However, where the exporter
directly pays antidumping duties or reimburses the related party
importer specifically for such duties, we must conclude that
reimbursement has occurred.
In this case, there is no evidence of inappropriate financial
intermingling or of an agreement to reimburse antidumping duties
between the two related parties. Therefore, the Department has no
reason to require payment of twice the amount of any dumping duties
owed.
Petitioners' Comments With Respect Only to the 88-89 (Sixth) Review
Comment 8: Petitioners argue that during verification it was noted
that Samsung did not claim expenses incurred in certain departments,
although expenses incurred in identical- or similarly-named departments
were included in the calculation of Samsung's home market indirect
selling expenses. Therefore, the Department should recalculate U.S.
indirect selling expenses to include the expenses of the noted excluded
departments.
Samsung states that petitioners have misinterpreted the
verification report's findings. After a thorough examination of the
functions of the identical- or similarly-named departments at Samsung,
the verifiers concluded that the functions performed by these
departments were not the same as those performed by the departments
which were included in Samsung's home market indirect selling expenses.
Thus, the Department correctly accepted the exclusion of the costs
incurred by these departments from Samsung's indirect selling expenses.
Department's Position: Samsung's statement that the Department
accepted the exclusion of the costs incurred by these departments from
Samsung's indirect selling expenses is only partially correct. During
verification, we reviewed Samsung's claimed indirect selling expenses
incurred with respect to home market sales and with respect to U.S.
sales. During this examination, we noted that Samsung did not claim
expenses incurred in certain departments in its calculation of U.S.
indirect selling expenses, while expenses incurred in identical- or
similarly-named departments were included in its calculation of home
market indirect selling expenses. We then collected and reviewed the
job descriptions for these various departments to determine whether the
tasks performed in the respective home market and export departments
were similar.
Based on the examination of the job descriptions, we had Samsung
provide us with the expenses for certain additional export departments
which were not included in its claimed U.S. indirect selling expenses.
For the other export departments which were examined, we determined
during verification that the functions of those export departments were
not similar to the corresponding home market sales departments, and
were not expenses related to export sales. Therefore, expenses for
those departments were not requested. The descriptions of these
departments and the additional expenses which were collected during the
verification are detailed in Exhibit 39 of the Sales Verification
Report for Samsung.
In these final results for the sixth administrative review, we have
concluded that the functions of certain export departments are similar
to the functions performed in certain domestic sales departments which
were included by Samsung in its claimed home market indirect selling
expenses. Therefore, we have added the expenses incurred by those
export departments to Samsung's U.S. indirect selling expenses.
Comment 9: Petitioners allege that Samsung has not demonstrated
that the transfer prices of raw materials it obtained from its related
party suppliers reflect the actual market value for these materials,
are above cost, or otherwise are arm's length transactions. The
Department should request that Samsung provide information regarding
its related supplier's fully absorbed manufacturing costs, in order to
ensure that any transfer prices used in its CV analysis are at arm's
length.
Samsung notes that the Department's verification report confirms
that material costs were reported at their fully-absorbed cost. The
transfer price was reported only for one related supplier as a matter
of convenience since materials purchased from that supplier were so
negligible as to comprise approximately one percent of total material
purchases.
Department's Position: At verification the Department found that,
with the exception of the noted one percent of material purchases from
one particular related supplier, all of Samsung's material costs
reported for purposes of CV were fully-absorbed costs and not transfer
prices (see Report on Verification of Constructed Value and Adjustments
for Differences in Merchandise at 11). Therefore, the material costs on
purchases from related parties were appropriately reported by Samsung
and accepted by the Department.
Petitioners' Comments With Respect to the 89-90 (Seventh) Review
Comment 10: Petitioners state that the Department should apply best
information available (BIA), i.e., the
[[Page 4412]]
highest calculated margin for any individual sales from this review,
for the one purchase price sale for which no contemporaneous foreign
market value (FMV) information was supplied by Samsung.
Samsung counters that information on all models requested by the
Department was cooperatively supplied and there is no basis whatsoever
for use of punitive BIA. In the alternative, the Department can either
make a comparison outside the contemporaneous period or make a
comparison with an alternative home market model for which information
is also available.
Department's Position: The Department has determined that, for the
one sale for which it preliminarily failed to calculate FMV and
assigned Samsung's weighted-average margin, there is sufficient
information on the record to calculate CV. Accordingly, in these final
results, the Department has used CV as the basis for FMV in comparison
to the one sale.
Samsung's Comments
Comment 11: Samsung objects to the Department's value-added tax
adjustment methodology used in its preliminary results of review.
Samsung argues that the Department should instead adopt a ``tax
neutral'' methodology.
Petitioners and Zenith counter that the methodology used in these
preliminary results is the Department's current administrative practice
and has been approved by the Court of International Trade (CIT).
Indeed, in litigation involving the eighth review of this order, the
Department's remand results involved application of the new tax
methodology (remand results filed August 31, 1994 in CIT Ct. No 93-11-
00719); those results were sustained by the court on December 28, 1994
(Slip Op. 94-199) and, without an appeal by any party, are now final.
Petitioners and Zenith contend that Samsung has raised no basis for
reconsideration of the tax methodology.
Department's Position: In light of the Federal Circuit's decision
in Federal Mogul v. United States, CAFC No. 94-1097, made since the
submission of comments in this case, the Department has changed its
treatment of home market consumption taxes. Where merchandise exported
to the United States is exempt from the consumption tax, the Department
will add to the U.S. price the absolute amount of such taxes charged on
the comparison sales in the home market. This is the same methodology
that the Department adopted following the decision of the Federal
Circuit in Zenith v. United States, 988 F. 2d 1573, 1582 (1993), and
which was suggested by that court in footnote 4 of its decision. The
CIT overturned this methodology in Federal Mogul v. United States, 834
F. Supp. 1391 (1993), and the Department acquiesced in the CIT's
decision. The Department then followed the CIT's preferred methodology,
which was to calculate the tax to be added to U.S. price by multiplying
the adjusted U.S. price by the foreign market tax rate; the Department
made adjustments to this amount so that the tax adjustment would not
alter a ``zero'' pre-tax dumping assessment.
The foreign exporters in the Federal Mogul case, however, appealed
that decision to the Federal Circuit, which reversed the CIT and held
that the statute did not preclude Commerce from using the ``Zenith
footnote 4'' methodology to calculate tax-neutral dumping assessments
(i.e., assessments that are unaffected by the existence or amount of
home market consumption taxes). Moreover, the Federal Circuit
recognized that certain international agreements of the United States,
in particular the General Agreement on Tariffs and Trade (GATT) and the
Tokyo Round Antidumping Code, required the calculation of tax-neutral
dumping assessments. The Federal Circuit remanded the case to the CIT
with instructions to direct Commerce to determine which tax methodology
it will employ.
The Department has determined that the ``Zenith footnote 4''
methodology should be used. First, as the Department has explained in
numerous administrative determinations and court filings over the past
decade, and as the Federal Circuit has now recognized, Article VI of
the GATT and Article 2 of the Tokyo Round Antidumping Code required
that dumping assessments be tax-neutral. This requirement continues
under the new Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade. Second, the Uruguay Round Agreements
Act (URAA) explicitly amended the antidumping law to remove consumption
taxes from the home market price and to eliminate the addition of taxes
to U.S. price, so that no consumption tax is included in the price in
either market. The Statement of Administrative Action (p. 159)
explicitly states that this change was intended to result in tax
neutrality.
While the ``Zenith footnote 4'' methodology is slightly different
from the URAA methodology, in that section 772(d)(1)(C) of the pre-URAA
law required that the tax be added to United States price rather than
subtracted from home market price, it does result in tax-neutral duty
assessments. In sum, the Department has elected to treat consumption
taxes in a manner consistent with its longstanding policy of tax-
neutrality and with the GATT.
Comment 12: Samsung argues that the Department should classify
Samsung's home market bad debt as a direct selling expense. The bad
debt expenses claimed by Samsung were owed by CTV purchasers that had
declared bankruptcy. Since the bad debt expense was incurred as a
direct result of CTV sales, there can be no dispute that the expense
was directly linked to sales of the subject merchandise. Furthermore,
the Department's treatment in these reviews is inconsistent with the
CIT's decision in Daewoo Electronics Co. v. United States, 712 F. Supp.
931, 938 (1989), aff'd in part and rev'd in part on other grounds, 6
F.3d 1511 (Fed. Cir. 1993), cert. denied, 114 S. Ct. 2672 (1994) as
well as the Department's decision on remand in the second and the
fourth reviews of this order to treat bad debt expenses as direct
selling expenses.
Petitioner points out that the referenced court decision did not
completely foreclose the Department from treating bad debt expenses as
indirect expenses. Rather, a respondent must bear the burden of
demonstrating that these expenses should be considered direct expenses.
Accordingly, the Department should continue to treat Samsung's bad debt
expenses as indirect selling expenses.
Zenith argues that the Department has stated that only those bad
debt expenses that have been identified, through an analysis of each
individual bad debt account, as directly related to the subject
merchandise would qualify as a direct selling expense (See Fourth
Review Remand Results dated 1/30/95 at 16). Specifically, where an
account reflecting receivables from CTV sales is written off as bad,
current CTV sales may be adjusted for the expense of the uncollectible
CTV receivables, notwithstanding that the receivables may have been
booked during a prior period. However, Zenith argues, Samsung has
failed to meet the standard for establishing that a direct relationship
exists between its sales of CTVs and the bad debt it incurred during
the period.
Department's Position: The Department verified the bad debt
expenses incurred by Samsung in the context of the sixth review and
found these expenses to be incurred with respect to sales to specific
distributors which had gone bankrupt and to whom Samsung had sold CTVs.
Furthermore, we also reviewed and accepted the
[[Page 4413]]
allocation used to derive the CTV-specific expense amount. Therefore,
we have treated the bad debt expenses reported with respect to CTVs as
direct selling expenses in these final results of both reviews.
Comment 13: Samsung argues that the Department should reverse its
preliminary decision to deny Samsung's revocation request based on the
conclusion that it was untimely. Although the statute authorizes
revocation, it says nothing about the procedures which the agency may
use to accomplish revocation, including whether a revocation request
must be filed at all and certainly not that such a request must be
filed on a specified date as a precondition to its consideration. In
implementing the statute, the Department issued a regulation that
provides that ``during the third and subsequent annual anniversary
months of the publication of an order or suspension of investigation
(the calendar month in which the anniversary of the date of publication
of the order or suspension occurs), a producer or reseller may request
in writing that the Secretary revoke an order * * *.'' (19 C.F.R.
353.25(b)). The respondent states that the use of the permissive term
``may'' can only mean that the Department has discretion to accept a
revocation request in a month other than the anniversary month of the
order. Because, in addition, the regulation does not say that the
request must be based on three immediately preceding review periods,
Samsung argues that a timely request could be filed in the anniversary
month of any year so long as the results of any previous reviews reveal
at least three consecutive years of no dumping.
The respondent further argues that the Department's preliminary
decision to refuse to consider Samsung's revocation request because it
was untimely filed is an abuse of the agency's discretion for four
reasons. First, it was not possible for Samsung to file its revocation
request in April 1989 (the anniversary month and year for requesting
the sixth administrative review) because the Department had not yet
issued its preliminary determination in the two immediately preceding
reviews of the fourth and fifth periods. Given the substantially above
de minimis margins determined in the first through third administrative
reviews, which were the only reviews completed as of April 1989,
Samsung argues that it was not possible at that time for it to form a
``reasonable belief'' that no dumping occurred in the three consecutive
review periods as required by the regulations. Litigation was also then
pending on issues arising from the final determinations in the first
through third administrative reviews, and the outcome of those issues
threatened to have a significant negative impact on the margin in all
of the subsequent administrative reviews. Second, Samsung claims that
it was not in a position to form that ``reasonable belief'' in part
because the Department itself had breached its own regulatory
obligation to complete the fourth and fifth administrative reviews
within the required 12-month period. Had that not been the case,
Samsung would have known that the fourth and fifth review margins
established its eligibility for requesting revocation. Third, Samsung
asserts that it submitted its request to the agency within a reasonable
time after the date on which it first could reasonably assume that its
margins in the fourth through sixth reviews would be de minimis. The
fourth review final results were issued in June 1990, and the fifth
review final results were not issued until March 1991. However, the
precedent setting issues in the first, second, and third reviews still
remained pending on appeal. Until the resolution of the tax pass
through issue in the first administrative review with the issuance by
the Court of Appeals for the Federal Circuit (CAFC) of its decision in
Daewoo Electronics Co., Ltd., et al. v. United States, 6 F.3d 1511
(Fed. Cir. 1993), Samsung argues that it remained impossible for it to
conclude that the de minimis results in the fourth and fifth reviews
would remain unaffected by the outcome of this litigation. Fourth,
Samsung claims that neither the Department nor the interested parties
have been prejudiced by Samsung's 1993 request for revocation.
Before 1984, the statute required the Department to review every
antidumping order at least once during each 12-month period. In 1984
when the Act was amended to conduct reviews only upon request by
interested parties, the underlying purpose of the change was to reduce
the administrative burden on the Department. Samsung states that the
Department's position that Samsung should have filed its revocation
request in April 1989 to preserve its right to revocation in the sixth
review effectively contravenes the purpose of the 1984 amendment. If
the Department holds to that position, every respondent in every case
will have to file a revocation request as a matter of routine in every
anniversary month of an order, beginning with the third anniversary
month, to preserve its right to revocation. This in turn means that the
Department becomes obligated to conduct a ``revocation review'' and a
``revocation verification'' in each review for which a revocation
request is submitted. Samsung argues that the goal of reducing the
administrative burden of conducting yearly reviews on outstanding
dumping orders has been undermined by such a requirement. Furthermore,
so long as the issue of whether a final determination will yield a de
minimis margin in any review upon which revocation depends remains
unresolved due either to Departmental delays in completing that review
or to a pending judicial appeal, Samsung asserts that the Department
legally cannot revoke the underlying antidumping order. Samsung argues
that the Department's policy of requiring a revocation request to be
filed in the anniversary month of the review period which would
potentially complete its revocation eligibility, regardless of ongoing
litigation affecting those reviews that could significantly alter the
results, serves no purpose, imposes unnecessary burdens on the agency,
and may, in fact, void the basis of its revocation decision.
Samsung also states that the Department abused its discretion by
failing to revoke the order with respect to Samsung on its own
initiative. Given the fact that, with the inclusion of these two review
results, Samsung has not been dumping for six years (third through
eighth review periods) and significant amounts of time and money have
been spent in proving that fact, the Department's failure to initiate
revocation proceedings on its own initiative is an abuse of agency
discretion.
Samsung claims that because Article 9(1) of the GATT code provides
that ``[a]n anti-dumping order shall remain in force only as long as,
and to the extent necessary to counteract dumping which is causing
injury,'' the Department's failure to revoke the order violates the
GATT Antidumping Code. Agreement on the Implementation of Article VI of
the General Agreement on Tariffs and Trade (Geneva, 1979). In addition,
Samsung argues that the failure of the Department to self initiate a
revocation proceeding also violates Article 9(2) which requires
investigating authorities to review the need for the continued
imposition of the duty on their own initiative.
Lastly, Samsung argues that the present case is distinguishable
from the CAFC decision in Exportaciones Bochica/Floral v. United States
802 F. Supp. 447 (1992) aff'd without opinion, 996 F2d 317 (Fed. Cir.
1993) (Bochica/Floral). Samsung argues that in that case the
Department's reason for rejecting an
[[Page 4414]]
untimely filed revocation request was its interest in minimizing the
agency's administrative burdens and the need for prompt completion of
reviews. Samsung states that this rationale simply does not apply to
the factual situation in their case. This is because Samsung's right to
revocation based on de minimis results in the fourth through sixth
reviews depends on the application of methodologies which were not
finalized until court litigation involving the first CTV review was
resolved by the CAFC. Thus, Samsung concludes that the Department's
interests in minimizing administrative burdens and promptly completing
its reviews, which were upheld in Bochica/Floral, have no relevance
here.
Petitioners respond to Samsung's arguments by indicating that the
regulations plainly provide that a respondent is required to request
revocation during the anniversary month of the order. They claim that
Samsung's argument that a revocation request for a particular period
can be filed during the anniversary month of any year is a
misinterpretation of the regulations. Petitioners state it is clear
that a request for a review for the immediately prior period must be
made in the immediately following anniversary month. Similarly, the
request for revocation applies to the same time period. This regulatory
requirement has been upheld by the CIT in Bochica/Floral where the
court specifically noted that ``ITA interprets [19 C.F.R. 353.26(b)] to
require that any revocation request be filed on the anniversary month
of the order if it is to be considered in the review requested that
month.'' Considering that the Department has been granted the authority
to establish implementing regulations, which it is also required to
follow, petitioners argue that failure of the Department to require a
timely revocation request of Samsung would result in great unfairness
to other interested parties and would be contrary to the plain language
of the regulations and the supporting CIT decision.
Petitioners disagree with Samsung's claim that its untimeliness
causes no prejudice to the Department or domestic interested parties.
Petitioners submit that the timing requirement is so important because
the request serves as notification of other requirements and other
deadlines necessary to the revocation process. Samsung's revocation
request filed in November of 1993, over four years late for review six
does not allow the Department to base its revocation determination on
recent information. If the Department is aware that revocation is at
issue and if it is unable to complete the revocation review promptly,
then in subsequent reviews it will know at the outset of the review
that it must verify the data. Petitioners assert that, if the request
for revocation is submitted late in the process, the Department will be
unable to conduct its revocation proceedings properly. The Department
must also determine that the respondent is not likely to sell at less
than FMV in the future. Accordingly, to satisfy the requirements
necessary for revocation, Samsung should have timely provided
information to demonstrate that there was no likelihood that it would
sell its merchandise from Korea at less than FMV.
Petitioners state that having failed to overcome the procedural and
substantive barriers to revocation resulting from its untimely request,
Samsung tried to excuse itself from its failure by arguing that it was
prevented from doing so because it could not form a reasonable belief
that there would be no dumping found in the fourth and fifth reviews.
Petitioners contend that, based on the Department's established
practice during April of 1989, there was a real possibility that the
margin results in the fourth and fifth reviews would be de minimis,
even in the absence of preliminary results. As of November 3, 1993,
when Samsung made its request for revocation, litigation on a range of
issues was also still continuing in a variety of administrative
reviews. Thus, petitioners contend, neither the timing of the
publication of the preliminary results nor the pending litigation can
excuse Samsung from failing to make a timely revocation request in
April 1989. Furthermore, petitioners point out, even if the Department
had completed the reviews within a twelve month period, the reviews
would have been subject to the same litigation that they were subject
to in November 1993. Samsung would have been in no better or worse
position in April 1989 than it was when it eventually filed its
request.
Zenith submitted rebuttal comments addressing this issue which
support those arguments provided by the petitioners and discussed
above.
Department's Position: The Department agrees with the petitioner
and Zenith and remains unpersuaded by Samsung's arguments regarding its
failure to timely file its revocation requests. The Department
interprets section 353.25(b) of its regulations to require a producer
or reseller to submit its revocation request during the opportunity
month for the administrative review which the respondent reasonably
believes would establish its eligibility for revocation. This
interpretation has been upheld by the CIT in Bochica/Floral.
Regardless of Samsung's numerous and varied reasons for its failure
to comply, the fact remains that Samsung should have filed its
revocation request for the sixth administrative review in April 1989,
the opportunity month for the sixth review period. Only by making such
a filing could Samsung have preserved its right to revocation in the
sixth review.
The Department is also 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
revocation 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).
Moreover, Samsung's specific argument that uncertainty concerning
the outcome of litigation on prior review periods precluded
certification that it had not sold CTVs at less than FMV for three
years, is based on an erroneous reading of section 353.25(b)(1) of the
regulations. The certification that a party has not sold merchandise at
less than FMV, required under 353.25(b)(1), pertains only to the
administrative review period being requested for review (and
revocation)--i.e., in Samsung's case, for review six. Since the
certification concerning the administrative review establishing a
respondent's eligibility for revocation is always made in advance of
conducting the review, it reflects the respondent's best information
and belief concerning it's pricing behavior during the period. Although
the Department had not issued preliminary results of review for periods
four and five by the time the revocation request was required for
period six in April of 1989, no presumption existed that Samsung had
been dumping in those earlier periods. Therefore, consistent with its
position in prior reviews, Samsung could have provided a certification
with respect to the third consecutive review period for which there was
as yet no confirmation that it made sales as less than FMV. Even though
Samsung could not know at the time whether it would ultimately qualify
for revocation, it had a sufficient basis to make the request and could
have timely done so.
The requirement that the revocation request be submitted at the
time the applicable review is requested is entirely reasonable and is
supported by practical considerations. All parties
[[Page 4415]]
involved in the proceeding are notified and are able to collect
information and contribute comments on the merits of the revocation. In
addition, the Department can properly plan to examine and verify all
necessary U.S. sales and FMV information including the likelihood that
the respondent will sell the merchandise at less than FMV in the future
(See section 353.25(a)(2)(ii)). It is precisely with respect to this
last point that the Department has not had the opportunity to gather
evidence or solicit comments. The Department received Samsung's
revocation request after having completed its verification of
information submitted in the sixth review. If the Department had
received a timely revocation request from Samsung, it could have
planned to gather, analyze, and verify all information necessary for
adequately evaluating Samsung's request and making that decision. This,
however, is not the situation in this case. For these reasons, the
Department is not revoking the order with respect to Samsung in these
administrative reviews.
Final Results of the Review
As a result of our review, we determine that the weighted-average
dumping margins for the periods are:
------------------------------------------------------------------------
Margin Margin
percentage percentage
-----------------------
Manufacturer/exporter 04/01/88- 04/01/89-
03/31/89 03/31/90
------------------------------------------------------------------------
Cosmos.......................................... 2.24 2.24
Samsung......................................... 0.00 0.03
Samwon.......................................... 16.57 16.57
Tongkook........................................ 16.57 16.57
------------------------------------------------------------------------
The Department shall instruct the U.S. Customs Service to 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 these final results of 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 CIT 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 final 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 notice also serves as the only reminder to parties subject to
administrative protective order (APO) of their responsibilities
concerning the return or destruction of proprietary information
disclosed under APO in accordance with 19 CFR 353.34(d). Failure to
comply is a violation of the APO.
These administrative reviews 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: January 29, 1996.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 96-2369 Filed 2-5-96; 8:45 am]
BILLING CODE 3510-DS-P
