[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Notices]
[Pages 20223-20225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11127]
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DEPARTMENT OF COMMERCE
[A-588-005]
High Power Microwave Amplifiers and Components Thereof From
Japan; Preliminary Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary results of Antidumping Duty
Administrative Review.
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SUMMARY: In response to a request by the petitioner, MCL, Inc., the
Department of Commerce (the Department) is conducting an administrative
review of the antidumping duty order on high power microwave amplifiers
and components thereof (HPMAs) from Japan. This review covers NEC
Corporation (NEC), a manufacturer/exporter of this merchandise to the
United States, and the period July 1, 1994, through June 30, 1995. The
firm failed to submit a response to our questionnaire. As a result, we
have preliminarily determined to use facts otherwise available for cash
deposit and appraisement purposes.
Interested parties are invited to comment on these preliminary
results. Parties who submit arguments in this proceeding are requested
to submit with the arguments: (1) a statement of the issues and (2) a
brief summary of the arguments.
EFFECTIVE DATE: May 6, 1996.
FOR FURTHER INFORMATION CONTACT: Hermes Pinilla or Michael Rill, Office
of Antidumping Compliance, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, DC 20230; telephone: (202) 482-
4733.
SUPPLEMENTARY INFORMATION:
Applicable Statute
Unless otherwise indicated, all citations to the statute are
references to the provisions effective January 1, 1995, the effective
date of the amendments made to the Tariff Act of 1930 (the Act) by the
Uruguay Round Agreements Act (URAA).
Background
On July 31, 1995, the petitioner, MCL, Inc., requested in
accordance with section 353.22(a) of the Department's regulations (19
CFR 353.22(a)) an administrative review of the antidumping duty order
(47 FR 31413, July 20, 1982) on HPMAs from Japan with respect to NEC, a
manufacturer/exporter of this merchandise to the United States, and
covering the period July 1, 1994, through June 30, 1995. We published a
notice of initiation of the review on August 16, 1995 (60 FR 42500).
The Department is now conducting this review in accordance with section
751 of the Act.
Scope of the Review
The products covered by this review are high power microwave
amplifiers and components thereof. High power microwave amplifiers are
radio-frequency power amplifier assemblies, and components thereof,
specifically designed for uplink transmission in C, X, and Ku bands
from fixed earth stations to communications satellites and having a
power output of one kilowatt or more. High power microwave amplifiers
may be imported in subassembly form, as complete amplifiers, or as a
component of higher level assemblies (generally earth stations). This
merchandise is currently classifiable under item 8525.10.80 of the
Harmonized Tariff Schedule (HTS). The HTS item number is provided for
convenience and customs purposes. The written description remains
dispositive.
The review covers NEC and the period July 1, 1994, through June 30,
1995 (POR).
Use of Facts Otherwise Available
We preliminarily determine, in accordance with section 776(c) of
the Act, that the use of facts available is appropriate for NEC because
it did not respond to the Department's antidumping questionnaire. We
sent NEC a questionnaire seeking information necessary to conduct a
review of NEC's sales of merchandise subject to this review. NEC did
not respond to the questionnaire. Rather, NEC submitted a letter on
January 18, 1996, stating that unrelated third parties
[[Page 20224]]
outside Japan sold subject merchandise to customers in the United
States during the POR, but that NEC was ``not in a position to respond
to the questionnaire based on the sales of subject merchandise made by
unaffiliated third parties * * *.'' On February 15, 1996, the
Department requested NEC to clarify whether NEC knew, or had reason to
know, the ultimate destination of subject merchandise sold to these
unaffiliated parties and requested NEC to report its sales to these
customers as U.S. sales. NEC submitted a letter on February 26, 1996,
stating that, at the time of sale, NEC had, or had reason to have,
knowledge that the ultimate destination of the subject merchandise
would be the United States. NEC asserted, however, that it was neither
feasible nor appropriate for NEC to respond to the Department's
questionnaire based upon these indirect sales. NEC again referred to
its inability to provide information concerning sales of unaffiliated
parties, but did not explain why it is not feasible to report its own
sales of subject merchandise.
Because necessary information is not available on the record for
the 1994-95 POR as a result of NEC withholding the requested
information, we must make our preliminary determination based on facts
otherwise available (section 776(a) of the Act).
The Department finds that, in not responding to the questionnaire,
NEC failed to cooperate by not acting to the best of its ability to
comply with a request for information from the Department.
Where the Department must base the entire dumping margin for a
respondent in an administrative review on the facts available because
that respondent failed to cooperate, section 776(b) of the Act
authorizes the Department to use an inference adverse to the interests
of that respondent in choosing the facts available. Section 776(b) of
the Act also authorizes the Department to use as adverse facts
available information derived from the petition, the final
determination, a previous administrative review, or other information
placed on the record. Because information from prior segments of the
proceeding constitutes secondary information, section 776(c) of the Act
provides that the Department shall, to the extent practicable,
corroborate that secondary information from independent sources
reasonably at its disposal. The Statement of Administrative Action
(SAA) provides that ``corroborate'' means that the Department will
satisfy itself that the secondary information to be used has probative
value. See H.R. DOC. No.316, Vol. 1, 103d Cong., 2d Sess. 870 (1994).
To corroborate secondary information, the Department will, to the
extent practicable, examine the reliability and relevance of the
information to be used. However, unlike for other types of information,
such as input costs or selling expenses, there are no independent
sources for calculated dumping margins. The only source for margins is
administrative determinations. Thus, in an administrative review, if
the Department chooses as total adverse facts available a calculated
dumping margin from a prior segment of the proceeding, it is not
necessary to question the reliability of the margin for that time
period. With respect to the relevance aspect to corroboration, however,
the Department will consider information reasonably at its disposal as
to whether there are circumstances that would render a margin not
relevant. Where circumstances indicate that the selected margin is not
appropriate as adverse facts available, the Department will disregard
the margin and determine an appropriate margin (see, e.g., Fresh Cut
Flowers from Mexico; Final Results of Antidumping Duty Administrative
Review, 61 FR 6812 (February 22, 1996) (the Department disregarded the
highest margin in that case as adverse BIA because the margin was based
on another company's uncharacteristic business expense resulting in an
unusually high margin)).
In this case, the highest rate applicable to NEC from any prior
segment of the proceeding is 41.4 percent. This is a margin calculated
in the original investigation using information provided by NEC. We
have selected 41.4 percent as the facts available margin for this POR.
To the best of our knowledge, there are no circumstances indicating
that this margin is inappropriate as adverse facts available (see High
Power Microwave Amplifiers and Components From Japan; Final
Determination of Sales at Less Than Fair Value, 47 FR 22134 (May 21,
1982)).
Preliminary Results of the Review
As a result of our review, we preliminarily determine that a margin
of 41.4 percent exists for NEC for the period July 1, 1994, through
June 30, 1995.
Any interested party may request a hearing within 10 days of
publication. Any hearing, if requested, will be held 44 days after the
date of publication, or the first workday thereafter. Case briefs and/
or written comments from interested parties may be submitted not 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 not later than 37 days after
the date of publication. Parties who submit arguments in this
proceeding are requested to submit with the arguments: (1) a statement
of the issues and (2) a brief summary of the arguments. The Department
will publish the final results of the administrative review, including
the results of its analysis of issues raised in any such written
comments or at a hearing.
Upon completion of this administrative review, 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 administrative review for all
shipments of HPMAs from Japan entered, or withdrawn from warehouse, for
consumption on or after the publication date, as provided by section
751(a)(1) of the Act: (1) the cash deposit rate for the reviewed
company will be that established in the final results of this
administrative review; (2) for manufacturers and exporters not covered
in this review, but covered in a previous review or the original less-
than-fair-value (LTFV) investigation, the cash deposit rate will
continue to be the company-specific rate published for the most recent
period; (3) if the exporter is not a firm covered in this review, a
previous review, or the original LTFV investigation, but the
manufacturer is, the cash deposit rate will be that established for the
most recent period for the manufacturer of the merchandise; and (4) the
cash deposit rates for all other manufacturers or exporters will be
33.4 percent, as explained below.
On May 25, 1993, the Court of International Trade (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), decided that once an ``all others'' rate is established for a
company it can only be changed through an administrative review. The
Department has determined that in order to implement these decisions,
it is appropriate to reinstate the original ``all others'' rate from
the less-than-fair-value (LTFV) investigation (or that rate as amended
for correction of clerical errors or as a result of litigation) in
proceedings governed by antidumping duty orders for the purposes of
establishing cash deposits in all current and future administrative
reviews.
[[Page 20225]]
In this case, the Department established two ``all others'' rates
in the final determination of the LTFV investigation (47 FR 22134, May
21, 1982). These rates were 25.4 percent for imports of TWT high power
amplifiers and parts dedicated exclusively for use in TWT high power
amplifiers and 41.4 percent for imports of Klystron high power
amplifiers and amplifiers components not dedicated exclusively for use
in TWT high power amplifiers. However, antidumping duty orders pertain
to individual classes or kinds of merchandise (see, e.g., Antidumping
Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical
Plain Bearings, and Parts Thereof From Japan, 54 FR 20904 (May
15,1989), and Antidumping Duty Orders: Heavy Forged Hand Tools,
Finished or Unfinished, With or Without Handles From the People's
Republic of China, 56 FR 6622 (February 19, 1991)) and the Department's
practice is to calculate a single ``all others'' rate for each class or
kind of merchandise. There is no indication that this proceeding covers
two classes or kinds of merchandise. Accordingly, we have calculated a
single average of these two rates, which is 33.4 percent, as the ``all
others'' rate for imports of this merchandise in a manner consistent
with the CIT's decisions.
These requirements, when imposed, shall remain in effect until
publication of the final results of the next administrative review.
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 Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.
Dated: April 26, 1996.
Susan G. Esserman
Assistant Secretary for Import Administration.
[FR Doc. 96-11127 Filed 5-3-96; 8:45 am]
BILLING CODE 3510-DS-P
