[Federal Register Volume 60, Number 32 (Thursday, February 16, 1995)]
[Notices]
[Pages 9005-9008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3960]



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DEPARTMENT OF COMMERCE
International Trade Administration
[A-580-008]


Color Television Receivers From the Republic of Korea; 
Preliminary Results and Termination in Part of Antidumping Duty 
Administrative Reviews

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Preliminary Results and Termination in Part of 
Antidumping Duty Administrative Reviews.

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SUMMARY: In response to requests by interested parties, the Department 
of Commerce (the Department) is conducting administrative reviews of 
the antidumping duty order on color television receivers (CTVs) from 
the Republic of Korea. The reviews (sixth and seventh, respectively) 
cover exports of this merchandise to the United States during the 
periods April 1, 1988 through March 31, 1989, and April 1, 1989 through 
March 31, 1990. The review of Quantronics Manufacturing 
[[Page 9006]] Company is being terminated in the sixth (88-89) review. 
Based on our review of the remainder of these exports, we preliminarily 
find the existence of dumping margins for all reviewed companies with 
the exception of Samsung Electronics Co., Ltd. (Samsung), which had a 
de minimis margin in both of our reviews. We invite interested parties 
to comment on these preliminary results.

3EFFECTIVE DATE: February 16, 1995.

FOR FURTHER INFORMATION CONTACT: Anne D'Alauro or Richard Herring, 
Office of Countervailing Compliance, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone: 
(202) 482-2786.

SUPPLEMENTARY INFORMATION:

Background

    On March 31, 1989, the Department published in the Federal Register 
a notice of ``Opportunity to Request Administrative Review'' (54 FR 
13211) of the antidumping duty order on CTVs from the Republic of Korea 
for the period April 1, 1988 through March 1, 1989 (sixth review). The 
United Electrical Workers of America, Independent, International 
Brotherhood of Electrical Workers, International Union of Electronic, 
Electrical, Salaried, Machine and Furniture Workers, AFL-CIO, and the 
Industrial Union Department, AFL-CIO (the Unions), the petitioners in 
this proceeding, Zenith Electronics Corporation, a domestic interested 
party, two respondents, Cosmos Electronics Company Ltd. (Cosmos), and 
Samsung, and an importer of color television receivers from Tongkook 
General Electronics Co., Ltd (Tongkook), and Samwon Electronics, Inc. 
(Samwon), requested an administrative review of the antidumping duty 
order for this period. For the subsequent (seventh) review period, 
April 1, 1989 through March 31, 1990, the opportunity notice was 
published on April 10, 1990 (55 FR 13302). With the exception of the 
importer of Tongkook and Samwon, the same interested parties requested 
a review of the seventh period. In addition, the respondent Goldstar 
Company, Ltd. (Goldstar), also requested a review of its exports for 
the seventh period.
    On May 24, 1989, the Department published a notice of initiation of 
the sixth review which covered seven companies including Tongkook, 
Samwon, Cosmos, Goldstar, Daewoo Electronics Co., Ltd. (Daewoo), 
Quantronics Manufacturing Company, Ltd. (Quantronics), and Samsung. On 
June 1, 1990, we published a notice of initiation for the seventh 
review (55 FR 22366) for the same seven manufacturers.
    The requests for review with respect to Goldstar for both periods 
were withdrawn on May 23, 1994. Because all the requesting parties for 
these reviews withdrew their requests for Goldstar, on June 29, 1994, 
the Department terminated the reviews of Goldstar (59 FR 33486) 
pursuant to 19 CFR Sec. 353.22(a)(5). On August 19, 1994, the final 
results of review with respect to Daewoo for both periods were 
separately issued (59 FR 40519). The request for review with respect to 
Quantronics for the seventh period was timely withdrawn pursuant to 
section 353.22(a)(5) and was terminated on July 31, 1990 (55 FR 31089). 
On October 7, 1994, the request for review of Quantronics made by 
Zenith Electronics Corporation for the sixth period was withdrawn. 
Pursuant to 19 CFR Sec. 353.22(a)(5), the Department has the discretion 
to extend the period during which requests for review may be withdrawn. 
Because withdrawal of the request does not burden the Department or 
unfairly prejudice another party, in this notice we are terminating the 
sixth administrative review with respect to Quantronics pursuant to 19 
CFR Sec. 353.22(a)(5).
    The Department is now conducting these administrative reviews in 
accordance with section 751 of the Tariff Act of 1930, as amended (the 
Tariff Act).

Scope of Reviews

    Imports covered by this review include CTVs, complete and 
incomplete, from the Republic of Korea. The order covers all CTVs 
regardless of tariff classification. During the period of review, the 
subject merchandise was classified under item numbers 684.9246, 
684.9248, 684.9250, 684.9252, 684.9253, 684.9255, 684.9256, 682. 9258, 
684.9262, 684.9263, 684.9270, 684.9275, 684.9655, 684.9656, 684.9658, 
684.9660, 684.9663, 684.9864, 684.9866, 687.3512, 687.3513, 687.3513, 
687.3514, 687.3516, 687.3518, and 687.3520 of the Tariff Schedules of 
the United States Annotated (TSUSA). This merchandise is currently 
classifiable under item numbers 8528.10.80, 8529.90.15, 8529.90.20, and 
8540.11.00 of the Harmonized Tariff Schedule (HTS). Although the HTS 
and TSUSA item numbers are provided for convenience and Customs 
purposes, our written description of the scope remains dispositive.

Best Information Available (BIA)

    Two companies, Tongkook and Samwon, failed to respond to the 
original questionnaires sent by the Department for both review periods. 
One firm, Cosmos, failed to respond to our supplemental questionnaire 
for both review periods after going out of business. In deciding what 
to use as BIA, 19 CFR 353.37(b) provides that the Department may take 
into account whether a party fails to provide requested information. 
When a company fails to provide the information requested in a timely 
manner, or otherwise significantly impedes the Department's review, the 
Department considers that company to be uncooperative, and generally 
assigns to that company the higher of (a) the highest rate for any 
company from any previous review or the original investigation, or (b) 
the highest rate for a responding firm with shipments during the 
current period. See Final Results of Antidumping Duty Administrative 
Review, Antifriction Bearings (Other than Tapered Roller Bearings) and 
Parts Thereof from the Federal Republic of Germany, et al. (56 FR 
31692; July 11, 1994). See also Allied-Signal Aerospace Co. v. United 
States, 996 F.2d 1195, 1191-92 (Fed. Cir. 1993), and Krupp Stahl AG et 
al. v. United States, 822 F. Supp. 789 (CIT 1993). For Tongkook and 
Samwon, the companies which failed to provide any information to the 
Department, we have used the highest rate from the original less-than-
fair value (LTFV) investigation of 16.57 percent as their BIA rate 
because this rate is higher than the highest rate in the current 
reviews. For Cosmos, we have instead applied ``second-tier'' BIA, used 
for cooperative companies, because Cosmos provided reasonable and 
timely responses until the time of its business failure. Second-tier 
BIA rates comprise the higher of (1) the highest rate (including the 
``all others'' rate) ever applied to that company from any prior review 
or the LTFV investigation, or (2) the highest rate calculated for any 
other company in the current review. Id. Because the only previous rate 
of 2.24 percent calculated for Cosmos from the immediately preceding 
review is higher than the rates calculated in the current reviews, 
Cosmos has been assigned a ``second-tier'' BIA rate of 2.24 percent.

Request for Revocation

    On November 12, 1993, Samsung submitted a request for revocation in 
the sixth administrative review which it based on having established, 
in conjunction with its anticipated de [[Page 9007]] minimis result in 
the sixth review, three years of sales at not LTFV. Pursuant to 
Sec. 353.25(b) of the Department's regulations, parties must submit 
their revocation request during the opportunity month for the 
administrative review which the respondent reasonably believes could 
establish their eligibility for revocation. See Exportaciones Bochica/
Floral v. United States, 802 F. Supp. 447, aff'd without opinion, 996 
F.2d 317 (1993). Therefore, in Samsung's case, even though the 1986-
1987 (fourth) and the 1987-1988 (fifth) reviews had not been completed, 
Samsung should have filed its request during April of 1989, the 
opportunity month for the sixth review period. Such a filing would have 
preserved its right to revocation in the sixth review. The Department 
has carefully considered Samsung's reasons for failing to file their 
revocation request in a timely manner. One reason involves their 
inability to speculate in April of 1989 on unknown results in reviews 
four and five. However, unknown results in the previous reviews is not 
a valid reason for delaying a request for revocation. The regulation 
requires the revocation request to be filed in the anniversary month of 
the order if it is to be considered in the review requested that month. 
Id.
    In addition, Samsung argues that although reviews four and five 
ultimately resulted in de minimis rates, an assumption would have had 
to be made that the litigation (in the first administrative review) 
involving the tax pass-through methodology, and affecting reviews four 
and five, would be resolved in a way that would result in calculation 
and allocation methodologies favorable to Samsung. It argues that 
because the issue regarding the correct tax methodology was not 
officially resolved until September 1993, it was not until that time 
that recognition could actually be given to final results in the fourth 
and fifth reviews. The Department, however, is not persuaded by 
Samsung's argument that the unknown results of ongoing litigation is an 
acceptable explanation for tardiness. The Department has consistently 
indicated that it is not its policy to await the results of pending 
court actions in making such decisions. See, Certain Fresh Cut Flowers 
from Colombia; Final Results of Antidumping Duty Administrative Review, 
and Notice of Revocation of Order (in Part) (59 FR 15159; March 31, 
1994). In any case, given that the final results of reviews four and 
five were known to be de minimis on June 27, 1990 and March 27, 1991, 
respectively, the uncertain effect of litigation regarding the tax 
pass-through methodology on these results is an unconvincing 
explanation for Samsung's failure to file its revocation request until 
approximately two-and-a-half years after the de minimis results. For 
these reasons, we are preliminarily denying Samsung's revocation 
request.
    Even more recently, on November 3, 1994, Samsung submitted a 
request for revocation in the seventh administrative review. For the 
same reasons discussed above, and the fact that the Department has not 
conducted the verification required for revocation under 
Sec. 353.25(c)(2)(ii), the Department is denying Samsung's revocation 
request for the seventh administrative review.

United States Price (USP)

    For Samsung, we based USP on purchase price in accordance with 
section 772(b) of the Tariff Act when CTVs were sold to unrelated 
purchasers in the United States prior to importation into the United 
States, and because exporter's sales price (ESP) methodology was not 
indicated by other circumstances. We based Samsung's USP on ESP as 
defined in section 772(c) of the Tariff Act when sales were made to 
unrelated parties after importation into the United States.
    We calculated purchase price based on the packed, delivered, free 
on board (FOB) U.S. port or FOB Korea prices to unrelated customers in 
the United States. We made deductions, where applicable, for foreign 
inland freight, forwarding, EIAK export fees, ocean freight, Korean 
customs clearance fees, marine insurance, U.S. brokerage charges, 
wharfage, and U.S. duties. Where applicable, we made an addition for 
import duties collected and rebated on imported raw materials used in 
merchandise exported to the United States.
    We calculated ESP based on the packed, delivered or FOB U.S. 
warehouse prices to unrelated customers in the United States. We made 
deductions, where applicable, for foreign inland freight, forwarding, 
EIAK export fees, ocean freight, customs clearance fees, marine 
insurance, U.S. brokerage charges, wharfage, U.S. duties, U.S. inland 
freight to the warehouse and for delivery to customers, royalties, 
discounts and rebates, commissions to unrelated parties, warranty 
expenses, return set losses, advertising, credit, and indirect selling 
expenses. Where applicable, we made an addition for import duties 
collected and rebated on imported raw materials used in merchandise 
exported to the United States.
    We adjusted USP for value-added taxes in accordance with our 
practice as outlined in Silicon Manganese from Venezuela, Preliminary 
Determination of Sales at Less Than Fair Value, 59 FR 31204, June 17, 
1994.
    There were no other adjustments claimed or allowed.

Foreign Market Value (FMV)

    In calculating FMV, the Department used home market price, as 
defined in section 773 of the Tariff Act, where sufficient quantities 
of such or similar merchandise were sold in the home market to provide 
a basis for comparison. Where sufficient quantities of such or similar 
merchandise for particular models were not sold in the home market, we 
used constructed value in accordance with section 773(a)(2) of the 
Tariff Act.
    Home market price was based on the packed, delivered prices in the 
home market. Where applicable, we made deductions for inland freight, 
forwarding, discounts, rebates, credit, technical services, royalties, 
advertising and promotion, as well as adjustments for differences in 
merchandise and packing. We adjusted FMV for value-added taxes in 
accordance with our practice as outlined in Silicon Manganese from 
Venezuela, Preliminary Determination of Sales at Less Than Fair Value, 
59 FR 31204, June 17, 1994. The company's warehousing expense could not 
be tied directly to either a particular customer or sales of the 
subject merchandise, and therefore we treated it as an indirect selling 
expense.
    In light of the Court of Appeals for the Federal Circuit's decision 
in Ad Hoc Committee of AD-NM-TX-FL Producers of Gray Portland Cement v. 
United States, 13 F.3d 398 (Fed. Cir. 1994), the Department no longer 
can deduct home market movement charges from FMV pursuant to its 
inherent power to fill in gaps in the antidumping statute. We instead 
will adjust for those expenses under the circumstance-of-sale (COS) 
provision of 19 CFR 353.56 and the ESP offset provision of 19 CFR 
353.56(b) (1) and (2), as appropriate, in the manner described below.
    When USP is based on purchase price, we only adjust for home market 
movement charges through the COS provision of 19 CFR 353.56. Under this 
adjustment, we capture only direct selling expenses, which include 
post-sale movement expenses and, in some circumstances, pre-sale 
movement expenses. Specifically, we will treat pre-sale movement 
expenses as direct expenses if those expenses are directly related to 
the home market sales of the merchandise under consideration. 
[[Page 9008]] Moreover, in order to determine whether pre-sale movement 
expenses are direct, the Department will examine the respondent's pre-
sale warehousing expenses, since the pre-sale movement charges incurred 
in positioning the merchandise at the warehouse are, for analytical 
purposes, inextricably linked to pre-sale warehousing expenses. If the 
pre-sale warehousing constitutes an indirect expense, the expense 
involved in getting the merchandise to the warehouse also must be 
indirect; conversely, a direct pre-sale warehousing expense necessarily 
implies a direct pre-sale movement expense.
    When USP is based on ESP, the Department uses the COS adjustment in 
the same manner as in purchase price situations. Additionally, under 
the ESP offset provision set forth in 19 CFR 353.56(b) (1) and (2), we 
will adjust for any pre-sale movement charges which are treated as 
indirect selling expenses. Accordingly, because the Department has 
preliminarily determined that pre-sale warehousing costs are an 
indirect expense, the Department is also treating pre-sale movement 
costs as an indirect expense. Therefore, no COS adjustment has been 
made for these costs. For ESP sales, an adjustment for indirect costs 
has been made under the ESP offset provision.
    For ESP comparisons, we also deducted indirect selling expenses 
from FMV in an amount not exceeding the indirect selling expenses and 
commissions incurred in the U.S. market. For purchase price 
comparisons, we added U.S. direct selling expenses including U.S. 
advertising, credit, warranties and royalties to FMV. Indirect selling 
expenses were deducted from FMV in an amount not exceeding the amount 
of commissions paid on U.S. purchase price sales in accordance with 19 
CFR 353.56(b)(1).
    We calculated constructed value for Samsung by adding material and 
fabrication costs, selling, general and administrative expenses (SG&A), 
profit, and U.S. packing in accordance with section 773(e) of the 
Tariff Act. Since, in both reviews, actual SG&A expenses were greater 
than the statutory minimum of 10 percent of the sum of materials and 
fabrication costs, we used Samsung's actual SG&A expenses. We used the 
statutory minimum of eight percent for profit in the sixth review in 
accordance with section 773(e) of the Tariff Act. In the seventh 
review, we used Samsung's actual profit experience since it was greater 
than eight percent of the cost of production.
    No other adjustments were claimed or allowed.

Preliminary Results of the Reviews

    As a result of our review, we preliminarily determine that the 
weighted-average dumping margins for the periods are:

------------------------------------------------------------------------
                                                  Margin percentage     
                                           -----------------------------
           Manufacturer/exporter            04/01/88-3/31/ 04/01/89-3/31/
                                                  89             90     
------------------------------------------------------------------------
Cosmos....................................  2.24           2.24         
Quantronics...............................  Terminated     Terminated   
Samsung...................................  0.02           0.09         
Samwon....................................  16.57          16.57        
Tongkook..................................  16.57          16.57        
------------------------------------------------------------------------

    Case briefs and/or written comments from interested parties may be 
submitted no later than 30 days after the date of publication of this 
notice. Rebuttal briefs and rebuttals to written comments, limited to 
issues raised in the case briefs and comments, may be filed no later 
than 37 days after the date of publication of this notice.
    Within 10 days of the date of publication of this notice, 
interested parties to this proceeding may request a disclosure and/or a 
hearing. The hearing, if requested, will take place no later than 44 
days after publication of this notice. Persons interested in attending 
the hearing should contact the Department for the date and time of the 
hearing.
    The Department will subsequently publish the final results of this 
administrative review including the results of its analysis of issues 
raised in any such written comments or at a hearing.
    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. The Department 
will issue appraisement instructions directly to the Customs Service.
    Furthermore, the following deposit requirements will be effective 
upon publication of the final results of this administrative review for 
all shipments of the subject merchandise from Korea entered, or 
withdrawn from warehouse, for consumption on or after the publication 
date, as provided by section 751(a)(1) of the Tariff Act: (1) The cash 
deposit rate for all companies will continue to be the company-specific 
rate published in the final determination covering the most recent 
period; (2) for merchandise exported by manufacturers or exporters not 
covered in this review but covered in previous reviews or the original 
LTFV investigation, the cash deposit rate will continue to be the 
company-specific rate published in the final determination covering the 
most recent period; (3) if the exporter is not a firm covered in this 
review, previous reviews, or the original investigation, but the 
manufacturer is, the cash deposit rate will be the rate established for 
the most recent period for the manufacturer of the merchandise; (4) the 
cash deposit rate for all other manufacturers or exporters will be 
13.90 percent, the ``all other'' rate established in the original LTFV 
investigation by the Department (49 FR 7620, March 1, 1984), in 
accordance with the decisions of the Court of International Trade in 
Floral Trade Council v. United States, 822 F. Supp. 766 (CIT 1993), and 
Federal-Mogul Corporation v. United States, 822 F. Supp. 782 (CIT 
1993).
    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 353.26 to file a certificate regarding the 
reimbursement of antidumping duties prior to liquidation of the 
relevant entries during this review period. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Tariff Act, as amended (19 U.S.C. 1675(a)(1)) 
and 19 CFR 353.22.

    Dated: February 8, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-3960 Filed 2-15-95; 8:45 am]
BILLING CODE 3510-DS-P