[Federal Register Volume 60, Number 167 (Tuesday, August 29, 1995)]
[Notices]
[Pages 44835-44837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21431]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-583-810]
Chrome-Plated Lug Nuts From Taiwan; Final Results of Antidumping
Duty Administrative Review and Termination in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results of antidumping duty administrative
review and termination in part.
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SUMMARY: On December 19, 1994, the Department of Commerce (the
Department) published the preliminary results of administrative review
of the antidumping duty order on chrome-plated lug nuts from Taiwan.
The review covers seven firms and the period September 1, 1992, through
August 31, 1993. Based on our analysis of the comments received, we
determine the dumping margins have not changed from those presented in
the preliminary results.
EFFECTIVE DATE: August 29, 1995.
FOR FURTHER INFORMATION CONTACT:
Todd Peterson or Thomas Futtner, Office of Antidumping Compliance,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W.,
Washington, D.C. 20230; telephone (202) 482-4195 or 482-3814,
respectively.
Applicable Statute and Regulations
The Department is conducting this review in accordance with section
751(a) of the Tariff Act of 1930, as amended (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.
Background
On December 19, 1994, the Department published the preliminary
results (59 FR 65317) of its administrative review of the antidumping
duty order on chrome plated lug nuts from Taiwan (September 20, 1991,
56 FR 47737). The Department has now completed this administrative
review in accordance with section 751 of the Act.
Scope of the Review
The merchandise covered by this review is one-piece and two-piece
chrome-plated lug nuts, finished or unfinished, which are more than
\11/16\ inches (17.45 millimeters) in height and which have a hexagonal
(hex) size of at least \3/4\ inches (19.05 millimeters) but not over
one inch (25.4 millimeters), plus or minus \1/16\ of an inch (1.59 mm).
The term ``unfinished'' refers to unplated and/or unassembled chrome-
plated lug nuts. The subject merchandise is used for securing wheels to
cars, vans, trucks, utility vehicles, and trailers. Zinc-plated lug
nuts, finished or unfinished, and stainless-steel capped lug nuts are
not in the scope of this review. Chrome-plated lock nuts are also not
in the scope of this review.
During the period of review, chrome-plated lug nuts were provided
for under subheading 7318.16.00.00 of the Harmonized Tariff Schedule
(HTS). Although the HTS subheading is provided for convenience and
Customs purposes, our written description of the scope of this review
is dispositive. This review covers seven firms; Gourmet Equipment
(Taiwan) Corporation (Gourmet), Buxton International Corporation
(Buxton), Chu Fong Metallic Industrial Works Co, Ltd, Transcend
International, Kuang Hong Industrial Works, San Chien Industrial Works,
Ltd, and Everspring Corporation, and the period September 1, 1993,
through August 31, 1994.
Analysis of Comments Received
We invited interested parties to comment on the preliminary
results. We received timely comments from one respondent, Buxton, and
rebuttal comments from the petitioner, Consolidated International
Automotive.
Comment
Respondent believes that the Department's use of overall best
information available (BIA) to determine Buxton's preliminary margin
was unsupported by the facts and not in accordance with the
Department's past practice.
Buxton believes that its disclosure of several ``minor pieces of
data'' not traceable to its audited financial statements is ``normal
business practice'' and should not be seen as a deficiency. Buxton
points to the Department's use of Sweaters Wholly or in Chief Weight of
Man-Made Fiber from Taiwan; Final Results of Changed Circumstances
Antidumping Duty Administrative Review, 58 FR 32644 (June 11, 1993) to
justify its claim that
[[Page 44836]]
use of BIA is incorrect because in Buxton's opinion, Sweaters from
Taiwan advocates the use of BIA only in cases of gross inconsistencies
or deficiencies.
Buxton cites Lasko Metal Products, Inc. v. United States, Slip Op.
93-1242 (Fed. Cir. December 29, 1994) to point out that the purpose of
the antidumping (AD) law is to determine the AD margin as accurately as
possible. Buxton charges that by basing the entire margin on BIA, the
Department has disregarded hundreds of verifiable items. Also, they
claim the total BIA margin does not accurately reflect the true dumping
margin.
Finally, Buxton cites National Steel Corp. v. United States, 18
CIT__, Slip. Op 94-194, at 11 (December 13, 1994), to emphasize that
the Department only applies total BIA when a respondent ``has failed to
submit information in a timely manner, or when part of the submitted
data is sufficiently flawed so that the response as a whole is rendered
unusable.'' Buxton claims that according to Usinor Sacilor v. United
States, Slip Op. 94-197 at 14 (CIT December 19, 1994) total BIA is
improper when data adjustments are minor or there is an inadvertent gap
in the record.
Petitioner believes that the Department correctly applied a BIA
margin to Buxton. Petitioner disagrees with Buxton's contention that
the ``problem areas are minor''. Petitioner states that the respondent
has the obligation to establish the validity and accuracy of all its
reported expenses.
Petitioner states that the cooperative BIA rate assigned in the
preliminary determination should be higher. Petitioner points to Brass
Sheet and Strip from Sweden: Final Results of Antidumping Duty
Administrative Review (57 FR 29278, July 1, 1992) for an explanation of
the Department's BIA policy. There, the Department stated: ``The
primary purpose of the BIA rule is to induce respondents to provide the
Department with timely, complete or accurate information, so that the
agency can achieve the fundamental purpose of the Tariff Act, namely
`determining current margins as accurately as possible'.'' Furthermore,
petitioner notes the Department stated in Final Results of Antidumping
Duty Administrative Review, Steel Jacks from Canada, 52 FR 32957
(September 1, 1987): ``To induce a noncomplying respondent to provide
the necessary response to a future information request, the Department
must select an appropriate BIA rate to encourage future compliance.''
Petitioner cites section 353.37(b) of the Department's regulations
which defines the Department's latitude in assigning BIA rates: ``The
best information available may include the factual information
submitted in support of the petition or subsequently submitted by
interested parties, * * * If an interested party refuses to provide
factual information requested by the Secretary or otherwise impedes the
proceeding, the Secretary may take that into account in determining
what is the best information available.'' Petitioner further points to
Krupp Stahl A.G. v. United States, Slip Op. 93-84 (CIT May 26, 1993)
where the Court of International Trade affirmed the Department's broad
discretion in determining which BIA rate to apply.
Department's Position
As the Department previously explained in the Preliminary Results
of Antidumping Duty Administrative Review: Chrome-Plated Lug Nuts from
Taiwan, 59 FR 65317 (December 19, 1994), reliance on the accounting
system used for the preparation of the audited financial statements is
a key and vital part of the Department's determination that a company's
sales and constructed value data are credible. See Final Determination
of Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat
Products, Certain Cold-Rolled Carbon Steel Flat Products, and Certain
Cut-To-Length Carbon Steel Plate from Korea, 58 FR 37176, 37186 (July
9, 1993). The reason for this is that use of internal documents that
have not been audited and are not used for preparation of the financial
statements or for any purpose outside internal deliberations of the
company does not guarantee the accuracy of the information contained in
the documents. Without such assurance, such costs are not verifiable.
Buxton used data from internal documents that could not be traced
to its audited financial statements. As a result, it was not possible
for the Department to follow its standard practice of reconciling a
company's sales and cost data to the company's audited financial
statements. See Notice of Preliminary Results of Antidumping Duty
Administrative Review: Chrome-Plated Lug Nuts from Taiwan, 59 FR 65317
(December 19, 1994).
It is not enough for Buxton simply to claim that it reported its
normal business practices with respect to certain expenses because this
can in no way compensate for the fact that certain expenses cannot be
traced to its independently audited financial statements. In this
respect, a claim of ``normal business practices'' cannot overcome the
deficiencies and inconsistencies present in its response. See Sweaters
Wholly or in Chief Weight of Man-Made Fiber from Taiwan; Final Results
of Changed Circumstances Antidumping Duty Administrative Review, 58 FR
32644, 32652 June 11, 1993.
Buxton misinterprets Sweaters from Taiwan as advocating use of BIA
only in cases of gross inconsistencies or deficiencies. Rather, the
Department determined that BIA was appropriate in Sweaters from Taiwan
because the respondent's financial records were unreliable, as in the
present case with Buxton. Because Buxton's records cannot be reconciled
to its audited financial statements, the Department cannot be assured
that all sales and costs have been appropriately reported. Similarly,
in this respect, in Sweaters from Taiwan the Department was unable to
determine to what extent transactions of a company were not recorded,
and thus, ``the Department could not confirm that these transactions
totaled only a few hundred dollars nor could we confirm that these were
minor expenses,'' 58 FR at 32651. Because the Department was unable to
verify the accuracy or completeness of Buxton's response, the
Department was compelled by section 776(c) of the Act to use BIA. See
Memorandum to Holly Kuga, Director, Office of Antidumping Compliance:
``Chrome-Plated Lug Nuts from Taiwan 9/1/92-8/31/93 Use of Best
Information Available'' (Jan. 12, 1995), in the proprietary file of
this case in the Central Records Unit, Room B-099.
Buxton's reliance on National Steel Corps is also misplaced. For
the reasons explained above, the Department determined that Buxton's
submission was sufficiently flawed so as to be unreliable because
Buxton could not reconcile that submission to its audited financial
statements. Thus, contrary to Buxton's assertions, National Steel Corps
supports the Department's determination to use BIA because in both
cases, ``part of the submitted data is sufficiently flawed, so that the
response as a whole is rendered unusable.'' Slip Op. 94-194 at 11.
While we do not disagree with Buxton's reference to Lasko Metal for
the general statutory proposition that dumping margins should be
determined as accurately as possible, that statutory purpose cannot be
carried out when part of the data submitted by the responding party is
so flawed that it cannot be used. Thus, the court's statement in
National Steel Corp. that the purpose of BIA is ``to induce respondents
to provide Commerce with requested information
[[Page 44837]]
in a timely, complete, and accurate manner * * *'' is more to the point
in this case. Slip OP. 94-194 at 8. Furthermore, when the Department
must resort the BIA, the courts have recognized that ``[the best
information available is not necessarily the most accurate information;
rather it is information that has become usable due to a respondent's
failure to provide accurate information.'' Usinor Sacilor v. United
States, Slip op. 94-197 at 12 (CIT December 19, 1994) (citations
omitted). Accordingly, because Buxton's submission could not be
reconciled to its audited financial statements, we have determined to
continue to apply BIA to Buxton.
In choosing a BIA rate it is the Department's policy to select a
rate which will encourage respondents to provide the necessary response
to future requests. The Department uses the following two-tier
hierarchy to separate cooperative firms from non-cooperative firms (see
Final Results of Antidumping Administrative Review of Antifriction
Bearings and Parts Thereof from France, et al., 58 FR 39739, July 26,
1993):
1. When a company refuses to cooperate with the Department or
otherwise significantly impedes these proceedings, we use as BIA the
higher of (1) The highest of the rates found for any firm for the
same class or kind of merchandise in the same country of origin in
the LTFV investigation or prior administrative reviews; or (2) the
highest rate found in this review for any firm for the same class or
kind of merchandise in the same country of origin.
2. When a company substantially cooperates with our requests for
information and, substantially cooperates in verification, but fails
to provide the information requested in a timely manner or in the
form required or was unable to substantiate it, we used as BIA the
highest of (1) The highest rate ever applicable to the firm for the
same class or kind of merchandise from either the LTFV investigation
or a prior administrative review or if the firm has never before
been investigated or reviewed, the all others rate from the LTFV
investigation; or (2) the highest calculated rate in this review for
the class or kind of merchandise for any firm from the same country
of origin.
In this instance, second-tier BIA applies to Buxton because it
cooperated, but nevertheless failed to provide data which could be
verified. As the Department is unable to compute a margin from
verifiable information in this review, we determine that use of the all
others rate established in the LTFV investigation is reasonable.
We are not convinced that there is justification in this case to
depart from our past practice in determining the cooperative BIA rate.
Final Results of Review
As a result of comments received, we have not changed our
preliminary results.
------------------------------------------------------------------------
Percent
Manufacturer/exporter margin
------------------------------------------------------------------------
Gourmet Equipment (Taiwan) Corporation....................... 6.47
Buxton International Corporation............................. 6.93
Chu Fong Metallic Industrial Works Co, Ltd................... 10.67
Transcend International...................................... 10.67
Kuang Hong Industrial Works.................................. 10.67
San Chien Industrial Works, Ltd.............................. 10.67
Everspring................................................... 6.93
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*No shipments or sales subject to this review. The firm had no
individual rate from any segment of this proceeding, so we are
applying the all others rate from the LTFV investigation.
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. The Department
will issue appraisement instructions concerning all respondents
directly to the U.S. Customs Service.
Furthermore, the following deposit requirements will be effective
for all shipments of the subject merchandise, entered, or withdrawn
from warehouse, for consumption on or after the publication date of
these final results of administrative review, as provided for by
section 751(a)(1) of the Tariff Act: (1) The cash deposit rate for the
reviewed firms will be the rates outlined above; and (2) for previously
reviewed or investigated companies not listed above, 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 prior review, or in the original LTFV 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; and (4)
if neither the exporter nor the manufacturer is a firm covered in this
or any previous review conducted by the Department, the cash deposit
rate will be 6.93%, the all others rate established in the LTFV
investigation.
These deposit requirements shall remain in effect until publication
of the final results of the next administrative review.
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 a reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 353.34(d). Timely written notification or
conversion to judicial protective order is hereby requested. Failure to
comply with the regulations and the terms of the APO is a sanctionable
violation.
This administrative review and notice are in accordance with
section 751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR
353.22.
Dated: August 4, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-21431 Filed 8-28-95; 8:45 am]
BILLING CODE 3510-DS-M
