[Federal Register Volume 62, Number 114 (Friday, June 13, 1997)]
[Notices]
[Pages 32292-32294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15605]
[[Page 32292]]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-485-801]
Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From Romania; Final Results of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Final Results of Antidumping Duty Administrative
Review.
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SUMMARY: On November 29, 1996, the Department of Commerce (the
Department) published the preliminary results of its administrative
review of the antidumping duty order on antifriction bearings (other
than tapered roller bearings) and parts thereof (AFBs), from Romania.
The period of review (POR) is May 1, 1993 through April 30, 1994. This
review covers one class or kind of merchandise, ball bearings (BBs),
and one respondent, Tehnoimportexport S.A. (TIE).
Based on our analysis of comments received, we have made changes to
the margin calculations. The final weighted-average dumping margin is
in the section titled Final Results of Review below.
EFFECTIVE DATE: July 13, 1997.
FOR FURTHER INFORMATION CONTACT: Charles Riggle or Thomas O. Barlow,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W.,
Washington D.C. 20230; telephone: (202) 482-4733.
Applicable Statute and Regulations: Unless otherwise indicated, all
citations to the Tariff Act of 1930, as amended, (the Act) and to the
Department's regulations are references to the provisions as they
existed on December 31, 1994.
SUPPLEMENTARY INFORMATION:
Background
On November 29, 1996, we published in the Federal Register the
preliminary results of administrative review of the antidumping duty
order on BBs and parts thereof from Romania. See Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof from Romania;
Preliminary Results of Antidumping Duty Administrative Review, 61 FR
60679. We gave interested parties an opportunity to comment on our
preliminary results. Only TIE submitted comments.
We have conducted this administrative review in accordance with
section 751(a)(1) of the Act and 19 CFR 353.22.
Scope of this Review
Imports covered by this review are shipments of BBs from Romania.
This merchandise is currently classifiable under Harmonized Tariff
Schedule (HTS) item numbers 3926.90.45, 4016.93.00, 4016.93.10,
4016.93.50, 6909.19.5010, 8431.20.00, 8431.39.010, 8482.10.10,
8482.10.50, 8482.80.00, 8482.91.00, 8482.99.05, 8482.99.10, 8482.99.35,
8482.99.6590, 8482.99.70, 8483.20.40, 8483.20.80, 8483.50.8040,
8483.50.90, 8483.90.20, 8483.90.30, 8483.90.70, 8708.50.50, 8708.60.50,
8708.60.80, 8708.70.6060, 8708.70.8050, 8708.93.30, 8708.93.5000,
8708.93.6000, 8708.93.75, 8708.99.06, 8708.99.31, 8708.99.4960,
8708.99.50, 8708.99.5800, 8708.99.8080, 8803.10.00, 8803.20.00,
8803.30.00, 8803.90.30, 8803.90.90.
The size or precision grade of a bearing does not influence whether
the bearing is covered by the order. For a further discussion on the
scope of the order being reviewed, including recent scope decisions,
see Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof from France, et al.; Final Results of Antidumping Duty
Administrative Reviews, and Revocation in Part of Antidumping Duty
Orders, 60 FR 10900 (February 28, 1995). The HTS item numbers are
provided for convenience and Customs purposes. The written description
of the scope of this order remains dispositive.
Analysis of Comments Received
Comment 1: TIE argues that it is entitled to a separate rate, and
that, in refusing to provide a separate rate for TIE, the Department
overlooked significant changes that occurred both in Romania and at TIE
over the past several years. TIE points out that in 1993, pursuant to
Romanian law, it was a joint stock company with 70 percent of the stock
held by the State Ownership Fund (SOF) and 30 percent held by the
Private Ownership Fund (POF). TIE claims that there is no evidence that
the government had any theoretical control over TIE's daily activities.
Even if the shareholders, i.e., the SOF and the POF had some rights
with respect to the selection of the Council of Administration, which
had the right to select certain management personnel, TIE states that
this should not negate a finding that there was no government control
with respect to TIE's exports. TIE argues that shareholders of
government-owned companies in any country have certain rights,
including the right to select certain company officials.
TIE states that exporters in non-market economy (NME) countries are
entitled to separate, company-specific margins when they can
demonstrate an absence of government control, both in law and in fact,
with respect to exports, and it further claims that separate rate
determinations are rendered on a case-by-case basis, citing Final
Determination of Sales at Less Than Fair Value: Sparklers from the
People's Republic of China (Sparklers), 56 FR 20588 (May 6, 1991), and
Final Determination of Sales at Less Than Fair Value: Silicon Carbide
from the People's Republic of China (Silicon Carbide), 59 FR 22585 (May
2, 1994). TIE argues that the Department failed to supply any causal
connection between government selection of management and actual
control of export prices, and TIE claims that there is no record
evidence to support the Department's assumption of such a connection.
TIE also argues that, in response to the Polish government's
request that the Department revoke Poland's status as a NME country,
the Department did not determine that ``government ownership'' of
state-owned enterprises, or the selection of management by the owner,
precludes a commercial entity's independence, referring to Department
Memorandum, Respondent's Request for Revocation of Poland's NME Status
(June 21, 1993) at 18-19.
Finally, TIE argues, the Department has determined, in other cases
involving Romania, that former state-owned Romanian trading companies
which have undergone partial privatization were entitled to separate
rates, citing, e.g., Circular Welded Non-Alloy Steel Pipe from Romania:
Final Determination of Sales at Less Than Fair Value, 61 FR 24274,
24283 (May 14, 1996) (Steel Pipe). While TIE acknowledges that it was
not privatized during the POR, TIE claims that its management, and not
the government, controlled all aspects of the export process.
Accordingly, TIE asserts, the Department should provide TIE with a
separate rate for the final results.
Department's Position: We disagree with TIE. To determine whether a
company is sufficiently independent of government control to be
entitled to a separate rate we analyze the exporting entity under the
test established in Sparklers, as amplified by Silicon Carbide. We test
the absence of both de jure and de facto government control with
respect to the following criteria: (1) the respondent's export prices
are not set by, nor subject to the approval of, a
[[Page 32293]]
government authority; (2) the respondent has the authority to negotiate
and sign contracts and other agreements; (3) the respondent has
autonomy from the government regarding the selection of management; and
(4) the respondent retains the proceeds from its export sales and makes
indepenent decisions regarding the disposition of profits.
In applying this test to TIE we determined that, from a de facto
perspective, TIE did not have autonomy in making decisions regarding
the selection of management. See Memorandum For Director, Office of
Antidumping Compliance, From Director, Division II, Office of
Antidumping Compliance: Assignment of a Separate Rate for
Tehnoimportexport S.A., in the 1993-94 Administrative Review of the
Antidumping Duty Order on Antifriction Bearings (Other Than Tapered
Roller Bearings) and Parts Thereof from Romania, January 31, 1996.
During the POR, the Council of Administration, composed mostly of
members of the government, was responsible for the hiring and firing of
key personnel, including TIE's general director. The Council of
Administration also selected the Executive Committee, which controlled
day-to-day activities of TIE, indicating a significant degree of de
facto government control. The fact that TIE did not have autonomy in
the selection of management also suggested that TIE's export prices
were subject to the approval of a government entity, and that TIE's
authority to negotiate and sign contracts was similarly not free from
government direction.
We find TIE's citation to our decision regarding the Polish
government's request that the Department revoke Poland's status as an
NME country, to be inapposite. Our test for determining NME status is
different from our separate-rates test. Additionally, as TIE
acknowledges, separate-rates analyses are rendered on a case-by-case
basis. Accordingly, we have made our determination as to TIE's
eligibility for a separate rate based on the characteristics unique to
TIE's situation.
We also note certain differences between this case and Steel Pipe.
Whereas in Steel Pipe we verified that respondents' Councils of
Administration were sufficiently independent of the government (Steel
Pipe at 24276), TIE's Council of Administration was, as explained
above, composed mostly of members of the government during the POR.
Accordingly, we have, for these final results, maintained our
preliminary determination that TIE is not entitled to a separate rate.
Comment 2: TIE argues that the Department's labor rate calculation,
based on the labor rate in Poland, was erroneous in three respects.
First, TIE challenges the monthly hours worked used to calculate
surrogate wage rates in Poland, obtained from the International Labor
Office (ILO) Yearbook of Labor Statistics. TIE claims that the monthly
hours figure is illogical, and assumes Polish workers are working only
31.65 hours per week. Further, TIE claims that the Department's use of
the ILO data conflicts with more recent information used by the
Department, citing Tapered Roller Bearings and Parts Thereof, Finished
or Unfinished, from the Republic of Romania; Final Results of
Antidumping Duty Administrative Review, 61 FR 51427, 51430 (October 2,
1996) (TRBs from Romania). Likewise, TIE notes that the Department used
the same data in Tapered Roller Bearings and Parts Thereof, Finished or
Unfinished from Romania; Preliminary Results of Antidumping Duty
Administrative Review, 61 FR 63826, 63927 (December 2, 1996). TIE
asserts that, assuming that wage statistics from the Polish Statistical
Bulletin are used for the final results, the data should be amended to
reflect a 42-hour work week consistent with the cited cases.
Second, TIE argues that the Polish labor rates improperly included
bonus payments. TIE claims that the Department typically uses a simple
hourly wage as a surrogate value, and that use of a wage that includes
bonus payments unfairly assumes profits were made by the Polish
companies. Accordingly, TIE argues that the Department should modify
the Polish labor data to exclude bonus payments from profit.
Finally, TIE argues that Polish labor rates are not representative
of labor rates in Romania, or in other potential surrogate countries.
TIE claims that the labor rate used by the Department in the
preliminary results, $1.46 per hour, exceeds the rate in Romania,
presumably because, based on 1992 statistical data used by the
Department, Poland's per capita GNP was roughly double that of Romania.
TIE argues that it is unfair to use the labor rate from a country with
such a disparate edge in per capita income without adjusting such labor
rates to account for the income disparity. TIE points out that record
evidence indicates that the labor rate for Ecuador, a potential
surrogate country whose per capita GNP was almost identical to that of
Romania, was $0.73 per hour.
TIE states that the Department's proposed regulations direct the
Department to use an average of the wage rates in market economy
countries considered to be economically comparable to the NME country.
TIE suggests that the Department adopt that policy for purposes of the
final results and use an average of the Polish rate (as modified by
TIE's other arguments explained above) and the Ecuadoran rate.
Department's Position: We agree with TIE in part. The ILO data we
used in the preliminary results represented actual hours worked as
opposed to paid hours, including, e.g., paid holidays and paid
vacations. The wage statistics from the Polish Statistical Bulletin are
based on total paid hours. Therefore, consistent with TRBs from
Romania, for these final results we have recalculated the wage rate
using a 42-hour work week based on information from Investing,
Licensing and Trading Conditions Abroad, Poland, published by the
Economist Intelligence Unit.
We disagree with TIE's second argument. Wage rates should be, as
accurately as possible, a reflection of the actual costs to employers.
Bonus payments represent a portion of the fabrication cost to the
employer and are properly a part of our calculation.
Finally, we disagree with TIE's suggestion that, in accordance with
our proposed regulations, we use an average of the Polish wage rate and
the Ecuadoran wage rate. Although our proposed regulations suggest the
use of an alternative method for valuing labor, (61 FR 7308, 7345
(February 27, 1996)), our current practice remains unchanged and we
continue is to use wage data from a single surrogate country.
Furthermore, of the two countries suggested by TIE with which to
calculate an average wage rate, only Poland has a comparable industry.
As such, Poland is the proper source for the surrogate wage rate.
Comment 3: TIE argues that the Department should use the statutory
minimum of 8 percent to calculate profit for foreign market value (FMV)
purposes.
Department's Position: We disagree with TIE. If the profit in the
surrogate is higher than 8 percent, as here, we use the actual profit
in the surrogate for our FMV calculation. We use the statutory minimum
for profit only in cases for which the surrogate profit is below 8
percent.
Final Results of the Review
As a result of our analysis of the comments we received, we
determine the following weighted-average margin
[[Page 32294]]
exists for the period May 1, 1993 through April 30, 1994:
------------------------------------------------------------------------
Margin
Manufacturer/exporter (percent)
------------------------------------------------------------------------
Romania Rate............................................... 0.00
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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 cash deposit requirements will be
effective upon publication of these final results for all shipments of
BBs and parts thereof from Romania entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(1) of the Act: (1) the cash deposit rate
for TIE and for all other Romanian exporters will be zero percent; and
(2) for non-Romanian exporters of BBs and parts thereof from Romania,
the cash deposit rate will be the rate applicable to the Romanian
supplier of that exporter. These deposit requirements shall remain in
effect until publication of the final results of the next
administrative review.
This notice serves as a 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 a reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning disposition of proprietary information disclosed under APO
in accordance with 19 CFR 353.34(d). Timely written notification of the
return/destruction of APO materials or conversion to judicial
protective order is hereby requested. Failure to comply with the
regulations and the terms of an APO is a sanctionable violation.
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: May 27, 1997.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 97-15605 Filed 6-12-97; 8:45 am]
BILLING CODE 3510-DS-P
