[Federal Register: November 28, 2003 (Volume 68, Number 229)]
[Notices]
[Page 66800-66810]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28no03-42]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-884]
Notice of Preliminary Determination of Sales at Less Than Fair
Value, Postponement of Final Determination, and Affirmative Preliminary
Determination of Critical Circumstances: Certain Color Television
Receivers From the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary determination of sales at less than fair
value.
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SUMMARY: We preliminarily determine that certain color television
receivers
[[Page 66801]]
from the People's Republic of China are being, or are likely to be,
sold in the United States at less than fair value, as provided in
section 733(b) of the Tariff Act of 1930, as amended. In addition, we
preliminarily determine that there is a reasonable basis to believe or
suspect that critical circumstances exist with respect to imports of
subject merchandise from the People's Republic of China.
Interested parties are invited to comment on this preliminary
determination. We will make our final determination not later than 135
days after the date of publication of this preliminary determination.
EFFECTIVE DATE: November 28, 2003.
FOR FURTHER INFORMATION CONTACT: Irina Itkin or Elizabeth Eastwood,
Office of AD/CVD Enforcement, Office 2, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW., Washington, DC 20230; telephone:
(202) 482-0656 or (202) 482-3874, respectively.
Preliminary Determination
We preliminarily determine that certain color television receivers
(CTVs) from the People's Republic of China (PRC) are being sold, or are
likely to be sold, in the United States at less than fair value (LTFV),
as provided in section 733 of the Tariff Act of 1930, as amended (the
Act). The estimated margins of sales at LTFV are shown in the
``Suspension of Liquidation'' section of this notice. In addition, we
preliminarily determine that there is a reasonable basis to believe or
suspect that critical circumstances exist with respect to CTVs from all
exporters in the PRC. The critical circumstances analysis for the
preliminary determination is discussed below under the section
``Critical Circumstances.''
Case History
Since the initiation of this investigation (Notice of Initiation of
Antidumping Duty Investigations: Certain Color Television Receivers
From Malaysia and the People's Republic of China, 68 FR 32013 (May 29,
2003)) (Initiation Notice), the following events have occurred: On June
16, 2003, the United States International Trade Commission (ITC)
preliminarily determined that there is a reasonable indication that
imports of certain color televisions from Malaysia and the People's
Republic of China are materially injuring the United States industry.
See ITC Investigation Nos. 731-TA-1034 and 1035 (Certain Color
Television Receivers from China and Malaysia, 68 FR 38089 (June 26,
2003)).
Also on June 16, 2003, we issued an antidumping questionnaire to
the Chinese Ministry of Commerce (MOFCOM) requesting that it forward
the questionnaire to Chinese producers/exporters accounting for all
known exports of subject merchandise from the PRC during the period of
investigation (POI). The Department also sent courtesy copies of the
antidumping questionnaire to the China Chamber of Commerce for Import &
Export of Machinery & Electronic Products, to all companies identified
in U.S. customs data as exporters of the subject merchandise during the
POI with shipments in commercial quantities, and to any additional
companies identified in the petition as exporters of CTVs. These
companies included: Gain Star International Ltd. (Gain Star); Guangdong
Stationery & Sporting Goods Import & Export Corporation (Guangdong
Stationery); Haier Electric Appliances International Co. (Haier);
Hisense Import and Export Co., Ltd. (Hisense); Konka Group Company,
Ltd. (Konka); New Great Wall Digital Electronics Co.; Philips Consumer
Electronics Co. of Suzhou Ltd. (Philips); Sichuan Changhong Electric
Co., Ltd. (Changhong); Sanyo Sales & Marketing Corp.; Shanghai SVW DD
and TT Electronic Enterprise Co., Ltd.; Star Light Electronics Co.,
Ltd. (Star Light); Supra Corporation (Supra); SVA Group Co., Ltd.
(SVA); TCL Holding Company Ltd. (TCL); and Xiamen Overseas Chinese
Electornic Co., Ltd. (XOCECO). The letters sent to MOFCOM and
individual exporters provided deadlines for responses to the different
sections of the questionnaire.
On June 18, 2003, XOCECO requested that high definition televisions
(HDTVs) be excluded from the scope of this investigation. For further
discussion, see the ``Scope Comments'' section of this notice, below.
On June 24, 2003, we issued a courtesy copy of the questionnaire to
XS Cargo, an additional exporter of PRC CTVs to the United States.
Also on June 24, 2003, Guangdong Stationery informed the Department
that it did not export subject merchandise to the United States during
the POI. For further discussion, see the June 24, 2003, memorandum from
Jill Pollack to the file entitled ``Placing Information on the Record
in the Antidumping Duty Investigation on Color Television Receivers
from the People's Republic of China (PRC).''
On June 25, 2003, XS Cargo informed the Department that it also did
not export subject merchandise to the United States during the POI, but
merely returned broken sets purchased in the United States. For further
discussion, see the June 25, 2003, memorandum from Shawn Thompson to
the file entitled ``Telephone Conversation with a Third Country
Exporter in the Antidumping Duty Investigation of Certain Color
Television Receivers from the People's Republic of China.''
On June 30, 2003, an additional PRC exporter of CTVs, Shenzhen
Chaungwei-RGB Electronics Co., Ltd. (Skyworth), contacted the
Department and requested that it be issued a copy of the questionnaire.
We provided a copy to Skyworth on July 1, 2003.
From July 7 through July 21, 2003, we received responses to section
A of the questionnaire from the following exporters: Changhong, Haier,
Hisense, Konka, Philips, Skyworth, Starlight International Holdings,
Ltd. (the parent company of Star Light, Star Fair Electronics Co. Ltd.,
and Starlight Marketing Development Ltd.), SVA, TCL, and XOCECO. We did
not receive properly-filed section A responses from any other
company.\1\
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\1\ In July 2003, we also received improperly-filed section A
responses from Gain Star and Supra. Neither company responded to our
request to file its response properly, despite the fact that we
afforded each an additional opportunity to do so and we provided
explicit instructions as to how to file properly; therefore, we have
returned these responses to Gain Star and Supra and will not
consider these responses for purposes of this proceeding.
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On July 15, 2003, Changhong requested that the Department find that
the CTV industry in the PRC is a market-oriented industry (MOI). On
July 21, 2003, the Department notified Changhong that its MOI claim
must be made on behalf of the CTV industry as a whole, rather than on
behalf of a specific exporter. Also on July 21, 2003, the petitioners
submitted a letter in which they opposed Changhong's claim that the
CTVs industry is market-oriented.
On July 22, 2003, pursuant to section 777A(c) of the Act, the
Department determined that, due to the large number of exporters of the
subject merchandise, it would limit the number of mandatory respondents
in this investigation. Therefore, we selected Changhong, Konka, TCL,
and XOCECO as the mandatory respondents, in addition to the PRC
government. The Department also issued a separate memorandum concerning
those exporters and producers who submitted a complete response to
section A of the questionnaire and the conditions under which they may
be considered for treatment other than inclusion in the rate applicable
to the government-controlled enterprise. For further
[[Page 66802]]
discussion, see the ``Respondent Selection'' section of this notice,
below, and the July 22, 2003, memorandum from the team to the file
entitled ``Antidumping Duty Investigation of Certain Color Television
Receivers from the People's Republic of China--Selection of
Respondents'' (the ``Respondent Selection memo''). See also the
``Margins for Exporters Whose Responses Were Not Analyzed'' section of
this notice, below.
On July 24, 2003, the Department invited interested parties to
comment on surrogate country selection and to provide publicly
available information for valuing the factors of production.
On July 31, 2003, the petitioners submitted comments opposing
XOCECO's June 18, 2003, scope exclusion request.
During July and August 2003, we issued supplemental section A
questionnaires to each of the four mandatory participating respondents
in this case (i.e., Changhong, Konka, TCL, and XOCECO) as well as to
each of the exporters not selected as mandatory respondents which
properly filed a section A response. We received responses to these
questionnaires in August 2003.
From August 1 through August 22, 2003, we received responses to the
remaining sections of the questionnaire from the four participating
mandatory respondents, as well as two exporters who requested to be
examined on a voluntary basis (i.e., Haier and Philips).
On August 12, 2003, Changhong, Philips, TCL, and XOCECO submitted
additional information related to the claim that the CTVs industry in
the PRC is market-oriented.\2\
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\2\ Changhong provided additional documentation supporting this
claim on August 20, 2003.
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From August 18 through October 24, 2003, we issued supplemental
questionnaires to Changhong, Konka, TCL, and XOCECO. We received
responses to these questionnaires from August 26 through October 31,
2003.
On August 22, 2003, the petitioners responded to the respondents'
August 12, 2003, MOI submission. Also on August 22, 2003, the
petitioners submitted information on surrogate values. On September 5,
2003, Skyworth submitted company-specific information to support the
MOI claim made in this case. Also on September 5, 2003, we received
information related to surrogate values from Changhong, Philips, and
TCL, as well as comments on surrogate country selection from Haier.
On September 9, 2003, Haier submitted company-specific information
to support the MOI claim made in this case.
On September 15, 2003, we notified Changhong, Philips, TCL, and
XOCECO that their MOI claim did not sufficiently address the three
prongs of the Department's MOI test, and that, as a consequence, we
were unable to conclude that the experiences of the firms making the
claim are representative of the industry. In the letter, we provided
further guidance as to what was necessary for an MOI investigation.
Copies of this letter were also provided to Haier, Skyworth, and the
PRC government.
On September 16, 2003, Changhong, Haier, Philips, TCL, and XOCECO
responded to the petitioners' August 22, 2003, comments on the MOI
issue.
On September 17, 2003, pursuant to section 733(c)(2) of the Act and
19 CFR 351.205(f), the Department determined that the case was
extraordinarily complicated and postponed the preliminary determination
until no later than November 21, 2003. See Postponement of Preliminary
Determinations of Antidumping Duty Investigations: Certain Color
Television Receivers From Malaysia (A-557-812) and the People's
Republic of China (A-570-884), 68 FR 55372 (Sept. 25, 2003).
From October 3 through November 3, 2003, the petitioners submitted
additional surrogate value information. Changhong provided comments on
certain of these submissions on October 16, October 31, and November 6,
2003.
Also on October 16, 2003, the petitioners alleged that critical
circumstances exist with respect to imports of CTVs from the PRC.
Accordingly, pursuant to section 732(e) of the Act, on October 17,
2003, we requested information from Changhong, Konka, TCL, and XOCECO
regarding monthly shipments to the United States during the period
January 2001 through October 2003. We received the requested
information on October 31 and November 3, 2003. The critical
circumstances analysis for the preliminary determination is discussed
below under ``Critical Circumstances.''
On October 24 and October 31, 2003, Changhong submitted additional
information related to surrogate values.
On October 30, 2003, we issued an additional supplemental
questionnaire to Changhong. We received Changhong's responses to this
questionnaire on November 10, 2003, and November 12, 2003. Although
these responses were received too late for use in the preliminary
determination, we intend to verify this information and consider it for
use in the final determination.
On October 31, 2003, Changhong submitted a request regarding its
MOI claim, stating that before making its final determination in this
case, the Department should identify any additional specific MOI
information required from the PRC CTVs producers.
On November 10, 2003, the petitioners submitted additional
surrogate value information. Although this information was received too
late for use in the preliminary determination, we will consider it for
use in the final determination.
Also on November 10, 2003, Konka requested that the Department
postpone the final determination until 135 days after the publication
of the preliminary determination. For further discussion, see the
``Postponement of Final Determination'' section of this notice.
Postponement of Final Determination
Section 735(a)(2) of the Act provides that a final determination
may be postponed until not later than 135 days after the date of the
publication of the preliminary determination if, in the event of an
affirmative preliminary determination, a request for such postponement
is made by exporters who account for a significant proportion of
exports of the subject merchandise, or in the event of a negative
preliminary determination, a request for such postponement is made by
the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2),
require that requests by respondents for postponement of a final
determination be accompanied by a request for extension of provisional
measures from a four-month period to not more than six months.
On November 10, 2003, Konka, which represents a significant
proportion of exports, requested that the Department postpone its final
determination until 135 days after the publication of the preliminary
determination. Konka also included a request to extend the provisional
measures to not more than six months. Accordingly, since we have made
an affirmative preliminary determination and no compelling reasons for
denial exist, we have postponed the final determination until not later
than 135 days after the publication of the preliminary determination.
Period of Investigation
Pursuant to 19 CFR 351.204(b)(1), the POI for an investigation
involving merchandise from a non-market economy (NME) is the two most
recent fiscal quarters prior to the month of the filing of the petition
(i.e., May 2002). Therefore, in this case, the POI is
[[Page 66803]]
October 1, 2002, through March 31, 2003.
Scope of Investigation
For purposes of this investigation, the term ``certain color
television receivers'' includes complete and incomplete direct-view or
projection-type cathode-ray tube color television receivers, with a
video display diagonal exceeding 52 centimeters, whether or not
combined with video recording or reproducing apparatus, which are
capable of receiving a broadcast television signal and producing a
video image. Specifically excluded from this investigation are computer
monitors or other video display devices that are not capable of
receiving a broadcast television signal.
The color television receivers subject to this investigation are
currently classifiable under subheadings 8528.12.2800, 8528.12.3250,
8528.12.3290, 8528.12.4000, 8528.12.5600, 8528.12.3600, 8528.12.4400,
8528.12.4800, and 8528.12.5200 of the Harmonized Tariff Schedule of the
United States (HTSUS). Although the HTSUS subheading is provided for
convenience and customs purposes, the written description of the scope
of the merchandise under investigation is dispositive.
Scope Comments
In accordance with the preamble to our regulations (see Antidumping
Duties; Countervailing Duties, 62 FR 27296, 27323 (May 19, 1997)), we
set aside a period of time for parties to raise issues regarding
product coverage and encouraged all parties to submit comments within
20 calendar days of publication of the Initiation Notice (see 68 FR at
32013). Interested parties submitted such comments by June 18, 2003.
Pursuant to the Department's solicitation of scope comments in the
Initiation Notice, XOCECO requested that HDTVs be excluded from the
scope of this investigation because: (1) These CTVs are produced by the
petitioners only in limited amounts; and (2) they differ from the CTVs
covered by the scope of the investigation in terms of physical
characteristics, ultimate uses, purchaser expectations, channels of
trade, and the manner of advertising and display. On July 31, 2003, the
petitioners opposed this request.
After considering the respondent's comments and the petitioners'
objections to XOCECO's request regarding HDTVs, we find that the CTVs
in question fall within the scope of this investigation. All CTVs,
including the CTVs in question, have the same fundamental
characteristics--that is they are capable of receiving a broadcast
signal and displaying a video image. Therefore, we conclude that all
CTVs, including HDTVs, are appropriately included in the scope of this
investigation, and constitute a single class or kind of merchandise.
For a further discussion, see the November 21, 2003, memorandum to
Louis Apple, Director, Office 2 from the team entitled ``Scope
Exclusion Request.''
Respondent Selection
In June 2003, the Department designated the PRC government as the
mandatory respondent in this case and issued it the questionnaire for
distribution to appropriate parties. The Department also sent courtesy
copies of the questionnaire to PRC companies which the Department
identified as exporters/producers of subject merchandise.
In July 2003, we received section A responses from 12 producers/
exporters of CTVs in the PRC. Each of these exporters requested to be
selected as a respondent in this case and requested a separate rate. In
addition, we received information from two additional companies issued
a questionnaire indicating that they did not export CTVs to the United
States during the POI. We did not receive responses from the remaining
companies who were sent courtesy copies of the questionnaire.
On July 22, 2003, the Department determined that it did not have
the resources to investigate all producers/exporters of the subject
merchandise requesting a separate rate. Rather, we found that it was
practicable to examine a maximum of four producers/exporters.
Therefore, we selected as mandatory respondents in this case the four
companies with the largest export volumes during the POI (i.e.,
Changhong, Konka, TCL, and XOCECO). For further discussion, see the
Respondent Selection memo.
Nonmarket Economy Country Status
The Department has treated the PRC as an NME country in all past
antidumping investigations. See, e.g., Final Determination of Sales at
Less Than Fair Value and Critical Circumstances: Certain Malleable Iron
Pipe Fittings From the People's Republic of China, 68 FR 61395, 61396
(Oct. 28, 2003). A designation as an NME remains in effect until it is
revoked by the Department. See section 771(18)(C) of the Act.
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs us to base normal value (NV) on
the NME producer's factors of production, valued in a comparable market
economy that is a significant producer of comparable merchandise. The
sources of individual factor prices are discussed under the ``Normal
Value'' section of the notice, below.
No party in this investigation has requested a revocation of the
PRC's NME status. We have, therefore, preliminarily continued to treat
the PRC as an NME.
Market Oriented Industry
On July 15, 2003, Changhong requested that the Department make a
determination that the CTV industry in the PRC is an MOI. Changhong
submitted certain company-specific data in support of its request. On
July 21, 2003, the petitioners submitted a letter in which they opposed
Changhong's claim that the CTVs industry is market-oriented.
Specifically, the petitioners stated that Changhong has not provided
evidence to support its claim that the majority of its material inputs
are valued at market prices. The petitioners also stated that Changhong
has not provided evidence to rebut allegations that the PRC government
regulates prices in the CTV industry, and that CTV producers in the PRC
have been assisted by direct government involvement in financing,
advertising, labor, utilities, currency exchange, and government
ownership of CTV-producing companies.
Also on July 21, 2003, the Department notified Changhong that its
MOI claim must be made on behalf of the CTV industry as a whole, rather
than on behalf of a specific exporter. On August 12, 2003, Changhong,
Konka, Philips, TCL, and XOCECO submitted additional information
related to the claim that the CTVs industry in the PRC is market-
oriented. On August 22, 2003, the petitioners responded to this
submission. In their August 22, 2003, submission, the petitioners
stated that the respondents' August 12, 2003, submission did not
provide data on substantially all of the CTV industry in the PRC and
that the respondents did adequately address the allegations contained
in the petitioners' July 21, 2003, submission, i.e., that non-market
economy forces in the PRC have a significant impact on the CTV industry
and distort the true cost of production.
On September 5 and September 9, 2003, Skyworth and Haier,
respectively, submitted company-specific information to support the MOI
claim made in this case.
On September 15, 2003, we notified Changhong, Konka, Philips, TCL,
and XOCECO that their MOI claim did not
[[Page 66804]]
sufficiently address the three prongs of the Department's MOI test (see
below), and that, as a consequence, we were unable to conclude that the
experiences of the firms making the claim are representative of the
industry. Copies of this letter were also provided to Haier, Skyworth,
and the PRC government. On September 16, 2003, Changhong, Haier,
Philips, TCL, and XOCECO responded to the petitioners' August 22, 2003,
comments on the MOI issue, but they did not address the Department's
concerns.
On October 31, 2003, Changhong submitted a request regarding its
MOI claim, stating that before making its final determination in this
case, the Department should identify the specific MOI information
required from the PRC CTV producers.
In order to consider a MOI claim, the Department requires
information on each of the three prongs of the MOI test regarding the
situation and experience of the PRC CTV industry as a whole.
Specifically, the MOI test requires that: (1) There be virtually no
government involvement in production or prices for the industry; (2)
the industry is marked by private or collective ownership that behaves
in a manner consistent with market considerations; and (3) producers
pay market-determined prices for all major inputs, and for all but an
insignificant proportion of minor inputs. Even in those cases where the
number of investigated firms is limited by the Department, a MOI
allegation must cover all (or virtually all) of the producers in the
industry in question. See Notice of Preliminary Determination of Sales
at Less Than Fair Value and Postponement of Final Determination:
Synthetic Indigo From the People's Republic of China, 64 FR 69723,
69725 (Dec. 14, 1999). See also Notice of Final Determination of Sales
at Less Than Fair Value: Freshwater Crawfish Tail Meat From the
People's Republic of China, 62 FR 41347, 41353 (Aug. 1, 1997).
As a threshold matter, we note that the respondents have not
provided information for the record that covers virtually all of the
producers of the industry. Rather, the respondents provided certain
data related to companies which appear to be export-oriented without
demonstrating that this data applies equally to other CTV producers
within the PRC. Because the MOI allegation made in this case has not
provided an adequate basis for considering the three factors of the
Department's MOI test, we are unable to consider the MOI request.
Separate Rates
In an NME proceeding, the Department presumes that all companies
within the country are subject to governmental control and should be
assigned a single antidumping duty rate unless the respondent
demonstrates the absence of both de jure and de facto governmental
control over its export activities. See Notice of Final Determination
of Sales at Less Than Fair Value: Bicycles From the People's Republic
of China, 61 FR 19026, 19027-28 (Apr. 30, 1996) (Bicycles). Changhong,
Konka, TCL, XOCECO, and the cooperative non-selected exporters named in
the ``Suspension of Liquidation'' section below have provided the
requested company-specific separate rates information and have
indicated that there is no element of government ownership or control
over their export operations. We have considered whether the mandatory
respondents are eligible for a separate rate as discussed below.
The Department's separate rate test is not concerned, in general,
with macroeconomic/ border-type controls (e.g., export licenses,
quotas, and minimum export prices), particularly if these controls are
imposed to prevent dumping. The test focuses, rather, on controls over
the investment, pricing, and output decision-making process at the
individual firm level. See Notice of Final Determination of Sales at
Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From
Ukraine, 62 FR 61754, 61758-60 (Nov. 19, 1997); Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, from the People's Republic
of China; Final Results of Antidumping Duty Administrative Review, 62
FR 61276, 61279 (Nov. 17, 1997); and Notice of Preliminary
Determination of Sales at Less than Fair Value: Honey from the People's
Republic of China, 60 FR 14725, 14727 (Mar. 20, 1995).
To establish whether a firm is sufficiently independent from
government control to be entitled to a separate rate, the Department
analyzes each exporting entity under a test arising out of the Final
Determination of Sales at Less Than Fair Value: Sparklers from the
People's Republic of China, 56 FR 20588, 20589 (May 6, 1991), as
modified by Notice of Final Determination of Sales at Less Than Fair
Value: Silicon Carbide from the People's Republic of China, 59 FR
22585, 25586-87 (May 2, 1994) (Silicon Carbide). Under the separate
rates criteria, the Department assigns separate rates in NME cases only
if the respondents can demonstrate the absence of both de jure and de
facto governmental control over export activities. See Silicon Carbide
and Notice of Final Determination of Sales at Less Than Fair Value:
Furfuryl Alcohol from the People's Republic of China, 60 FR 22544,
22545 (May 8, 1995) (Furfuryl Alcohol).
1. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) any other
formal measures by the government decentralizing control of companies.
The mandatory respondents have placed on the record a number of
documents to demonstrate absence of de jure control, including the
``Law of the People's Republic of China on Industrial Enterprises Owned
By the Whole People.''
In prior cases, the Department has analyzed these laws and found
that they establish an absence of de jure control. See, e.g., Notice of
Preliminary Determination of Sales at Less Than Fair Value and
Postponement of Final Determination: Certain Partial-Extension Steel
Drawer Slides With Rollers From the People's Republic of China, 60 FR
29571, 29573 (June 5, 1995); \3\ Notice of Final Determination of Sales
at Less Than Fair Value: Manganese Metal From the People's Republic of
China, 60 FR 56045, 56046 (Nov. 6, 1995). We have no new information in
this proceeding which would cause us to reconsider this determination.
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\3\ This was unchanged in the final determination. See, Notice
of Final Determination of Sales at Less Than Fair Value: Certain
Partial-Extension Steel Drawer Slides with Rollers from the People's
Republic of China, 60 FR 54472, 54474 (Oct. 24, 1995).
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According to the mandatory respondents, CTV exports are not
affected by export licensing provisions or export quotas. These
respondents claim to have autonomy in setting the contract prices for
sales of CTVs through independent price negotiations with their foreign
customers without interference from the PRC government. Based on the
assertions of the respondents, we preliminarily determine that there is
an absence of de jure government control over the pricing and marketing
decisions of the respondents with respect to their CTV export sales.
[[Page 66805]]
2. Absence of De Facto Control
As stated in previous cases, there is some evidence that certain
enactments of the PRC central government have not been implemented
uniformly among different sectors and/or jurisdictions in the PRC. See
Final Determination of Sales at Less Than Fair Value: Certain Preserved
Mushrooms from the People's Republic of China, 63 FR 72255, 72256 (Dec.
31, 1998). Therefore, the Department has determined that an analysis of
de facto control is critical in determining whether respondents are, in
fact, subject to a degree of governmental control which would preclude
the Department from assigning separate rates.
The Department typically considers four factors in evaluating
whether each respondent is subject to de facto governmental control of
its export functions: (1) Whether the export prices are set by, or
subject to, the approval of a governmental authority; (2) whether the
respondent has authority to negotiate and sign contracts, and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of its management; and (4)
whether the respondent retains the proceeds of its export sales and
makes independent decisions regarding disposition of profits or
financing of losses. See Id.
The mandatory respondents have asserted the following: (1) They
establish their own export prices; (2) they negotiate contracts without
guidance from any governmental entities or organizations; (3) they make
their own personnel decisions; and (4) they retain the proceeds of
their export sales and use profits according to their business needs.
Additionally, the respondents' questionnaire responses indicate that
they do not coordinate with other exporters in setting prices or in
determining which companies will sell to which markets. This
information supports a preliminary finding that there is an absence of
de facto governmental control of the export functions of these
companies. Consequently, we preliminarily determine that the mandatory
respondents have met the criteria for the application of separate
rates.
Margins for Cooperative Exporters Not Selected
For those exporters: (1) Who submitted a timely response to section
A of the Department's questionnaire, but were not selected as mandatory
respondents, and (2) for whom the section A response indicates that the
exporter is eligible for a separate rate, we assigned a weighted-
average of the rates of the fully analyzed companies, excluding any
rates that were zero, de minimis, or based entirely on facts available.
See Notice of Final Determination of Sales at Less Than Fair Value:
Certain Circular Welded Carbon-Quality Steel Pipe from the People's
Republic of China, 67 FR 36570, 36571 (May 24, 2002) (Welded Steel
Pipe). Companies receiving this rate are identified by name in the
``Suspension of Liquidation'' section of this notice.
PRC-Wide Rate and Use of Facts Otherwise Available
As in all NME cases, the Department implements a policy whereby
there is a rebuttable presumption that all exporters or producers
located in the NME comprise a single exporter under common government
control, the ``NME entity.'' The Department assigns a single NME rate
to the NME entity unless an exporter can demonstrate eligibility for a
separate rate.
Section 776(a)(2) of the Act provides that if an interested party
or any other person: (A) withholds information that has been requested
by the administering authority; (B) fails to provide such information
by the deadline, or in the form or manner requested; (C) significantly
impedes a proceeding; or (D) provides such information that cannot be
verified, the Department shall use, subject to sections 782(d) and (e)
of the Act, facts otherwise available in reaching the applicable
determination.
Pursuant to section 782(e) of the Act, the Department shall not
decline to consider submitted information if all of the following
requirements are met: (1) The information is submitted by the
established deadline; (2) the information can be verified; (3) the
information is not so incomplete that it cannot serve as a reliable
basis for reaching the applicable determination; (4) the interested
party has demonstrated that it acted to the best of its ability; and
(5) the information can be used without undue difficulties.
Information on the record of this investigation indicates that
there are numerous producers/exporters of the subject merchandise in
the PRC. As noted in the ``Case History'' section above, all exporters
were given the opportunity to respond to the Department's
questionnaire. Based upon our knowledge of the PRC and the fact that
U.S. import statistics show that the responding companies did not
account for all imports into the United States from the PRC, we have
preliminarily determined that certain PRC exporters of CTVs failed to
respond to our questionnaire. As a result, use of facts available (FA),
pursuant to section 776(a)(2)(A) of the Act, is appropriate.
In selecting among the facts otherwise available, section 776(b) of
the Act authorizes the Department to use adverse facts available (AFA)
if the Department finds that an interested party failed to cooperate by
not acting to the best of its ability to comply with the request for
information. See, e.g., Bicycles, 61 FR at 19028; Notice of Final
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled
Flat-Rolled Carbon-Quality Steel Products From the Russian Federation,
65 FR 5510, 5518 (Feb. 4, 2000). MOFCOM was notified in the
Department's questionnaire that failure to submit the requested
information by the date specified might result in use of FA. The
producers/exporters that decided not to respond to the Department's
questionnaire failed to act to the best of their ability in this
investigation. Absent a response, we must presume government control of
these companies. The Department has determined, therefore, that in
selecting from among the facts otherwise available an adverse inference
pursuant to section 776(b) of the Act is warranted.
In accordance with our standard practice, as AFA, we are assigning
as the PRC-wide rate the higher of: (1) The highest margin stated in
the notice of initiation (i.e., the recalculated petition margin); or
(2) the highest margin calculated for any respondent in this
investigation. See, e.g., Notice of Final Determination of Sales at
Less Than Fair Value: Certain Cold-Rolled Carbon Quality Steel Products
from the People's Republic of China, 65 FR 34660 (May 31, 2000) and
accompanying decision memorandum at Comment 1. In this case, the
preliminary AFA margin is 78.45 percent, which is the highest margin
stated in the notice of initiation. See Initiation Notice, 68 FR at
32016.
Corroboration of Information
Section 776(b) of the Act authorizes the Department to use AFA
information derived from the petition, the final determination from the
LTFV investigation, a previous administrative review, or any other
information placed on the record.
Section 776(c) of the Act requires the Department to corroborate,
to the extent practicable, secondary information used as FA. Secondary
information is defined as ``[i]nformation derived from the petition
that gave rise to the investigation or review, the final determination
concerning the subject merchandise, or any previous review
[[Page 66806]]
under section 751 concerning the subject merchandise.'' See Statement
of Administrative Action (SAA) accompanying the Uruguay Round
Agreements Act, H.R. Doc. No. 103-316 at 870 (1994) and 19 CFR
351.308(d). The SAA clarifies that ``corroborate'' means that the
Department will satisfy itself that the secondary information to be
used has probative value. See the SAA at 870. The SAA also states that
independent sources used to corroborate such evidence may include, for
example, published price lists, official import statistics, customs
data, and information obtained from interested parties during the
particular investigation. See the SAA at 870.
In order to determine the probative value of the margins in the
petition for use as AFA for purposes of this determination, we examined
evidence supporting the calculations in the petition. We reviewed the
adequacy and accuracy of the information in the petition during our
pre-initiation analysis of the petition, to the extent appropriate
information was available for this purpose. See the May 22, 2003,
Initiation Checklist, on file in the Central Records Unite (CRU), Room
B-099, of the Main Commerce Department building, for a discussion of
the margin calculations in the petition. In accordance with section
776(c) of the Act, to the extent practicable, we examined the key
elements of the export price (EP) and NV calculations on which the
margins in the petition were based.
In order to corroborate the petition's EP calculations, we compared
the prices in the petition for CTVs to the prices submitted by the
mandatory respondents. In order to corroborate the petitioners' NV
calculation, we compared the petitioners' factor consumption and/or
surrogate value data for CTVs to the data reported by the respondents
for the most significant factors--color picture tubes (CPTs), cabinets,
woofer speakers, remotes with tuners, other parts and components,
electricity, factory overhead, selling, general, and administrative
(SG&A) expenses, profit, and packing expenses--and to surrogate values
selected by the Department for the preliminary determination, as
discussed below.
As discussed in the November 21, 2003, memorandum from the team to
the file entitled ``Corroboration of Data Contained in the Petition for
Assigning an Adverse Facts Available Rate,'' we found the U.S. price
and factors of production information in the petition to be reasonable
and of probative value. As a number of the surrogate values selected
for the preliminary determination differed from those used in the
petition, we compared the petition margin calculations to the
calculations based on the selected surrogate values wherever possible
and found they were reasonably close. Therefore, we preliminarily
determine that the petition information has probative value.
Accordingly, we find that the highest margin stated in the notice of
initiation, 78.45 percent, is corroborated within the meaning of
section 776(c) of the Act. For further discussion, see the November 21,
2003, memorandum from the team to the file entitled ``Corroboration of
Data Contained in the Petition for Assigning an Adverse Facts Available
Rate.''
Fair Value Comparisons
To determine whether sales of CTVs from the PRC were made at LTFV,
we compared the EP or constructed export price (CEP) to the NV, as
described in the ``Export Price/Constructed Export Price,'' and
``Normal Value'' sections of this notice, below. In accordance with
section 777A(d)(1)(A)(i) of the Act, we compared POI-wide weighted-
average EPs and CEPs by product to the appropriate product-specific NV.
Export Price/Constructed Export Price
A. Changhong
For Changhong, we used EP methodology in accordance with section
772(a) of the Act because the subject merchandise was sold directly to
unaffiliated customers in the United States prior to importation and
CEP methodology was not otherwise appropriate. We based EP on the
packed FOB PRC port or CIF U.S. port prices to unaffiliated purchasers
in the United States, as appropriate. We made deductions for movement
expenses, in accordance with 772(c)(2)(A) of the Act; these included,
where appropriate, foreign inland freight, foreign brokerage and
handling, ocean freight, and marine insurance. As certain of these
movement services were provided by NME suppliers, we valued them using
Indian rates. For further discussion of our use of surrogate data in an
NME proceeding, as well as selection of India as the appropriate
surrogate country, see the ``Normal Value'' section of this notice,
below.
With respect to ocean freight, Changhong asserted that it used both
PRC and market-economy suppliers for its shipments of CTVs. However,
based on Changhong's submitted information, we could only establish
that one of Changhong's market-economy carriers charged market-economy
prices. Specifically, Changhong's questionnaire responses indicate
that, for Changhong's remaining market-economy carriers, ocean freight
was paid to a PRC company, not a market-economy supplier. Therefore, we
valued ocean freight expenses for Changhong's remaining market-economy
carriers, as well as its PRC carriers, using the substantiated market-
economy carrier's rates. For further discussion, see the November 21,
2003, memorandum from Elizabeth Eastwood to the file entitled, ``U.S.
Price and Factors of Production Adjustments for Sichuan Changhong
Electric Co., Ltd. for the Preliminary Determination.''
Where appropriate, we adjusted the values to reflect inflation up
to the POI using the wholesale price indices (WPI) or the purchase
price indices (PPI) published by the International Monetary Fund (IMF),
as appropriate.
B. Konka
For Konka, we used EP methodology in accordance with section 772(a)
of the Act because the subject merchandise was sold directly to
unaffiliated customers in the United States prior to importation and
CEP methodology was not otherwise appropriate. We based EP on the
packed FOB PRC port prices to unaffiliated purchasers in the United
States, as appropriate. We made deductions for movement expenses, in
accordance with 772(c)(2)(A) of the Act; these included, where
appropriate, foreign inland freight and foreign brokerage and handling.
As certain of these movement services were provided by NME suppliers,
we valued them using Indian rates. For further discussion of these
values, see the ``Normal Value'' section of this notice, below.
C. TCL
For TCL, we used EP methodology in accordance with section 772(a)
of the Act because the subject merchandise was sold directly to
unaffiliated customers in the United States prior to importation and
CEP methodology was not otherwise appropriate. In accordance with our
practice, we excluded sales made to the United States through a
Japanese reseller as well as a sample sale to the United States from
our analysis for purposes of the preliminary determination because they
were made in small quantities. See, e.g., Notice of Preliminary
Determination of Sales at Less Than Fair Value: Hot-Rolled Flat-Rolled
Carbon-Quality Steel Products from Japan, 64 FR 8291, 8295 (Feb. 19,
1999) and Notice of Preliminary Determination of Sales at Not Less Than
[[Page 66807]]
Fair Value: Pure Magnesium From the Russian Federation, 66 FR 21319,
21322-23 (Apr. 30, 2001).
We based EP on the packed FOB PRC prices to unaffiliated purchasers
in the United States. We made deductions for movement expenses, in
accordance with 772(c)(2)(A) of the Act; these included, where
appropriate, foreign inland freight and foreign brokerage and handling.
As certain of these movement services were provided by NME suppliers,
we valued them using Indian rates. For further discussion of these
values, see the ``Normal Value'' section of this notice, below.
D. XOCECO
For XOCECO, we used CEP methodology in accordance with section
772(b) of the Act, because sales to the first unaffiliated purchaser in
the United States took place after importation. We calculated CEP based
on ex-warehouse or delivered prices to unaffiliated purchasers in the
United States. We made deductions for movement expenses, in accordance
with 772(c)(2)(A) of the Act; these included, where appropriate,
foreign inland freight, foreign brokerage and handling, ocean freight,
marine insurance, U.S. inland freight, U.S. warehousing, other U.S.
transportation expenses, U.S. customs brokerage fees and duties in
accordance with section 772(c)(2)(A) of the Act. For freight services
provided by market-economy companies and paid for in a market currency,
we used the actual prices which XOCECO paid to the freight supplier in
our CEP calculation. Where these movement services were provided by NME
suppliers, we valued them using Indian rates.
Regarding U.S. warehousing and other U.S. transportation expenses,
XOCECO attempted to respond to our requests for information but failed
to properly include this information in its sales database. Because
XOCECO was only partially responsive, we have not relied on its
control-number-specific U.S. warehousing and other U.S. transportation
expenses, and instead have based the amount of these expenses on FA,
pursuant to section 776(a)(2)(A) of the Act. In selecting among the
facts otherwise available, we applied the average of the reported
model-specific warehouse and other transportation expenses for every
transaction during the POI.
We made additional deductions from CEP for credit expenses,
warranty expenses, and U.S. indirect selling expenses, including U.S.
inventory carrying costs and other indirect selling expenses, in
accordance with section 772(d)(1) of the Act. Regarding warranty
expenses, XOCECO twice failed to provide requested documentation
substantiating the breakdown of warranty expenses between subject and
non-subject merchandise. As a result, we find that the use of FA,
pursuant to section 776(a)(2)(A) of the Act, is appropriate.
Furthermore, since the Department finds that XOCECO failed to cooperate
by not acting to the best of its ability to comply with the request for
information, an adverse inference is warranted under section 776(b) of
the Act. As AFA, we applied the highest reported model-specific
warranty expense for every transaction during the POI.
Pursuant to section 772(d)(3) of the Act, we further reduced the
starting price by an amount for profit to arrive at CEP. We calculated
the CEP profit ratio for XOCECO based on the financial data reported in
the income statements of three Indian producers of CTVs, BPL Limited
(BPL), Onida Saka Limited (Onida Saka), and Videocon International
Limited (Videocon) for the year ended 2002.
Normal Value
A. Surrogate Country
Section 773(c)(4) of the Act requires the Department to value an
NME producer's factors of production, to the extent possible, in one or
more market economy countries that: (1) Are at a level of economic
development comparable to that of the NME country, and (2) are
significant producers of comparable merchandise. The Department has
determined that India, Pakistan, Indonesia, Sri Lanka, and the
Philippines are countries comparable to the PRC in terms of overall
economic development. See the July 10, 2003, memorandum from Ron
Lorentzen to Louis Apple entitled ``Antidumping Duty Investigation of
Color Television Receivers from the People's Republic of China (PRC):
Request for a List of Surrogate Countries.''
According to the available information on the record, we have
determined that India is a significant producer of CTVs. See the
November 21, 2003, memorandum from the team to the file entitled
``Preliminary Determination Factors Valuation Memorandum,'' (the
Factors Memorandum), on file in the CRU. For purposes of the
preliminary determination, we have selected India as the surrogate
country, based on the quality and contemporaneity of the currently
available data. Accordingly, we have calculated NV using Indian values
for the PRC producers' factors of production. We have obtained and
relied upon publicly available information wherever possible.
Factors of Production
In accordance with 19 CFR 351.408(c)(1), the Department will
normally use publicly available information to value factors of
production. However, the Department's regulations also provide that
where a producer sources an input from a market economy and pays for it
in market economy currency, the Department employs the actual price
paid for the input to calculate the factors-based NV. Id.; see also
Lasko Metal Products v. United States, 43 F. 3d 1442, 1445-1446 (Fed.
Cir. 1994). Changhong, Konka, TCL, and XOCECO reported that some of
their inputs were purchased from market economies and paid for in a
market economy currency. Where respondents were unable to provide
sufficient documentation that certain inputs were purchased from
market-economy suppliers, we valued these inputs using surrogate
values.
In accordance with section 773(c) of the Act, we calculated NV
based on factors of production reported by each respondent for the POI.
To calculate NV, the reported per-unit factor quantities were
multiplied by publicly available Indian surrogate values. For purposes
of calculating NV, we valued PRC factors of production, in accordance
with section 773(c)(1) of the Act. Factors of production include, but
are not limited to: (1) Hours of labor required; (2) quantities of raw
materials employed; (3) amounts of energy and other utilities consumed;
and (4) representative capital cost, including depreciation. In
examining surrogate values, we selected, where possible, the publicly
available value which was: (1) an average non-export value; (2)
representative of a range of prices within the POI or most
contemporaneous with the POI; (3) product-specific; and (4) tax-
exclusive. For a more detailed explanation of the methodology used in
calculating various surrogate values, see the Factors Memorandum.
In selecting the surrogate values, we considered the quality,
specificity, and contemporaneity of the data. As appropriate, we
adjusted input prices by including freight costs to make them delivered
prices. We added to Indian surrogate values surrogate freight costs
using the shorter of the reported distance from the domestic supplier
to the factory or the distance from the nearest seaport to the factory.
This adjustment is in accordance with the Court of Appeals for the
Federal
[[Page 66808]]
Circuit's decision in Sigma Corporation v. United States, 117 F. 3d
1401, 1407-08 (Fed. Cir. 1997). For a discussion of the valuation of
Changhong, Konka, and TCL's freight costs, see the ``Export Price/
Constructed Export Price'' section of this notice, above. Regarding the
valuation of foreign inland freight for XOCECO, we note that XOCECO
failed to amend its factors of production database to include distances
and modes of transportation from NME suppliers, despite a specific
request that it do so. As a result, we find that the use of FA,
pursuant to section 776(a)(2)(A) of the Act, is appropriate.
Furthermore, because XOCECO failed to cooperate by not acting to the
best of its ability to comply with the request for information, we find
that an adverse inference is warranted under section 776(b) of the Act.
In calculating freight on factor inputs, as AFA, we multiplied the
factor input by the highest freight surrogate value on the record of
this case and the distance from the applicable port to the factory.
Where appropriate, we adjusted surrogate values to reflect
inflation up to the POI using the WPI or the PPI published by the IMF,
as appropriate.
Some inputs were purchased from market-economy suppliers and paid
for in convertible currency. Following our normal practice, we used the
actual price paid for these inputs, where possible. However, where the
input was not purchased from a market-economy supplier and paid for in
a market-economy currency, or where the input was purchased from a
market-economy country which the Department has found to maintain
broadly-available, non-industry-specific subsides which may benefit all
exporters to all export markets (i.e., Korea, India, Indonesia, and
Thailand), it was necessary to select a surrogate value.
Regarding color picture tubes and speakers, where the respondents
purchased these inputs from suppliers in the PRC or from one of the
market economies identified above, we valued these inputs using import
data obtained from http://www.infodriveindia.com, a fee-based Web site
providing Indian customs data. We used this source because it provided
the most specific information available for the color picture tubes and
speakers used by the respondents. See the Factors Memorandum. We valued
all other major raw material inputs not purchased by the respondents
from market economies using India import statistics published by the
Directorate General of Commercial Intelligence and Statistics of the
Ministry of Commerce and Industry, Government of India, Calcutta and
published by the World Trade Atlas Trade Information System (World
Trade Atlas) covering the period October 2002 through March 2003.
Regarding sales of scrap metal, XOCECO twice failed to provide
requested documentation demonstrating sales of scrap metal during the
POI. As a result, use of FA, pursuant to section 776(a)(2)(A) of the
Act, is appropriate. Furthermore, since the Department finds that
XOCECO failed to cooperate by not acting to the best of its ability to
comply with the request for information, an adverse inference is
warranted under section 776(b) of the Act. As AFA, we are denying
XOCECO any offset on sales of tin scrap to its consumption of tin.
Rather, we allocated this quantity of scrap across the production of
subject merchandise during the POI, thereby increasing the per-unit
consumption of this metal.
We valued natural gas using a price obtained from the website of
the Gas Authority of India Ltd., a supplier of natural gas in India,
covering the period January through June 2002. For further discussion,
see the Factors Memorandum.
For aluminum paper, cardboard, carton, inner cardboard paper,
labels, manuals, nails, outside cardboard paper, package bags, packing
tape, plastic accessory bags, plastic bags, plastic strap, polyethylene
plastic bags, polyfoam, polypropylene sheet, and staples (i.e., the
packing materials reported by the respondents), we used import values
from the World Trade Atlas.
Regarding the remaining raw material factors of production reported
by the respondents, we did not value these factors because: (1)
Surrogate value information was not available; and (2) the materials
were reported as used in very small amounts. See the memorandum
entitled ``Concurrence Memorandum for the Preliminary Determination in
the Investigation of Certain Color Television Receivers from the
People's Republic of China,'' dated November 21, 2003. We valued
electricity using electricity rate data from the International Energy
Agency's Key World Energy Statistics 2002 report (see http://www.iea.org/statist/keyworld2002/key2002/keystats.htm
) used in the
2002-2003 antidumping duty administrative review of creatine from the
PRC. See Creatine Monohydrate From the People's Republic of China:
Preliminary Results of Antidumping Duty Administrative Review, 68 FR
62767, 62769 (Nov. 6, 2003).
We valued labor based on a regression-based wage rate, in
accordance with 19 CFR 351.408(c)(3).
To determine factory overhead, depreciation, SG&A expenses,
interest expenses, and profit for the finished product, we relied on
rates derived from the financial statements of BPL, Onida Saka, and
Videocon, Indian producers of identical merchandise. We applied these
ratios to the respondents' costs (determined as noted above) for
materials, labor, and energy.
Critical Circumstances
On October 16, 2003, the petitioners alleged that there is a
reasonable basis to believe or suspect critical circumstances exist
with respect to the antidumping investigation of CTVs from the PRC. In
accordance with 19 CFR 351.206(c)(2)(i), because petitioners submitted
a critical circumstances allegation more than 20 days before the
scheduled date of the preliminary determination, the Department must
issue its preliminary critical circumstances determination not later
than the date of the preliminary determination.
Section 733(e)(1) of the Act provides that the Department, upon
receipt of a timely allegation of critical circumstances, will
determine whether there is a reasonable basis to believe or suspect
that: (A)(i) there is a history of dumping and material injury by
reason of dumped imports in the United States or elsewhere of the
subject merchandise, or (ii) the person by whom, or for whose account,
the merchandise was imported knew or should have known that the
exporter was selling the subject merchandise at less than its fair
value and there was likely to be material injury by reason of such
sales, and (B) there have been massive imports of the subject
merchandise over a relatively short period.
According to 19 CFR 351.206(h)(1), in determining whether imports
of the subject merchandise have been ``massive,'' the Department
normally will examine: (i) The volume and value of the imports; (ii)
seasonal trends; and (iii) the share of domestic consumption accounted
for by the imports. In addition, 19 CFR 351.206(h)(2) provides that
``unless the imports during a ``relatively short period'' have
increased by at least 15 percent over the imports during an immediately
preceding period of comparable duration, the Secretary will not
consider the imports massive.''
In accordance with 19 CFR 351.206(i), the Department defines
``relatively short period'' as generally the period beginning on the
date the proceeding
[[Page 66809]]
begins (i.e., the date the petition is filed) and ending at least three
months later.
In determining whether the above statutory criteria have been
satisfied, we examined: (1) The evidence presented in the petitioners'
submission of October 16, 2003; (2) exporter-specific shipment data
requested by the Department; (3) evidence obtained since the initiation
of the LTFV investigation (i.e., additional import statistics released
by U.S. Customs and Border Protection (CBP)); and (4) the ITC
preliminary injury determination.
To determine whether a history of dumping and material injury
exists, the Department generally considers current or previous
antidumping duty orders on the subject merchandise from the country in
question in the United States and current orders in any other country.
The Department will normally not consider the initiation of a case, or
a preliminary or final determination of sales at LTFV in the absence of
an affirmative finding of material injury by the ITC, as indicative of
a history sufficient to satisfy this criterion. See Preliminary
Determinations of Critical Circumstances: Steel Concrete Reinforcing
Bars From Ukraine and Moldova, 65 FR 70696, 70696-97 (Nov. 27, 2000).
With regard to imports of CTVs from the PRC, the European Union (EU)
imposed antidumping duty measures on CTVs from the PRC in 1995. See
Council Regulation 1531/2002 of 14 August 2002 on Imposing a Definitive
Anti-dumping Duty on Imports of Colour Television Receivers, 2002 O.J.
(L 231)1-28. Because there is a history of dumping and material injury
by reason of dumped imports in the EU of the subject merchandise, the
first criterion of the test for finding critical circumstances is met.
Because we have preliminarily found that section 733(e)(1)(A) of
the Act is met, we must consider whether under section 733(e)(1)(B) of
the Act imports of the merchandise have been massive over a relatively
short period. According to 19 CFR 351.206(h), we consider the following
to determine whether imports have been massive over a relatively short
period of time: (1) The volume and value of the imports; (2) seasonal
trends (if applicable); and (3) the share of domestic consumption
accounted for by the imports.
When examining volume and value data, the Department typically
compares the export volume for equal periods immediately preceding and
following the filing of the petition. Unless the imports in the
comparison period have increased by at least 15 percent over the
imports during the base period, we will not consider, under 19 CFR
351.206(h), the imports to have been ``massive.''
To determine whether imports of subject merchandise have been
massive over a relatively short period, we compared the respondents'
export volumes for the five months before the filing of the petition
(i.e., December 2002 through April 2003) to that during the five months
following the filing of the petition (i.e., May through September
2003). These periods were selected based on the Department's practice
of using the longest period for which information is available from the
month that the petition was filed through the effective date of the
preliminary determination.
The Department requested and obtained from Changhong, Konka, TCL,
and XOCECO monthly shipment data for 2001, 2002, and 2003. According to
the monthly shipment information, we found the volume of shipments of
CTVs by each of these companies increased by more than 15 percent.
Therefore, we analyzed the time series data for the two years prior to
the petition (i.e., 2001 and 2002), to address the issue of
seasonality. Although this data shows there have also been significant
surges in imports from the respondents between those same base and
comparison periods, we find that this seasonal pattern does not account
entirely for the increase in imports. Specifically, we note that
imports have increased substantially over their normal seasonal levels.
We therefore find that imports of subject merchandise were massive in
the comparison period. For further discussion of this analysis, see the
November 21, 2003, memorandum from the team to Louis Apple, Office
Director, entitled ``Antidumping Duty Investigation of Certain Color
Televisions (CTVs) from the People's Republic of China Preliminary
Affirmative Determination of Critical Circumstances,'' (Critical
Circumstances Memo).
With regard to the share of domestic consumption accounted for by
imports, we were unable, pursuant to 19 CFR 351.206(h)(iii), to
consider the share of domestic consumption accounted for by the imports
because the available data did not permit such analysis. It is the
Department's practice to conduct its critical circumstances analysis of
companies in the ``All Others'' category based on the experience of the
investigated companies. Because we are determining that critical
circumstances exist for each of the mandatory respondents in this
investigation, we are concluding that critical circumstances exist for
companies covered by the ``All Others'' rate.
As discussed above, no other party responded to the Department's
request for information and thus we relied on AFA for the rate
applicable to the ``PRC entity'' (i.e., the PRC-wide rate). Therefore,
the use of AFA is also warranted in the critical circumstances analysis
for the PRC entity. As AFA in this case, we relied on the import
statistics through September 2003 (the latest month for which such data
was available for the preliminary determination). The import statistics
showed an increase in imports that was significantly greater than 15
percent. Even if we were to subtract the shipment data provided by the
mandatory respondents from the aggregate import data and to compare the
remaining volume of imports in the base period to the remaining imports
in the comparison period, this comparison would indicate that massive
imports occurred. See the Critical Circumstances Memo.
In summary, we find there is a reasonable basis to believe or
suspect importers had knowledge of dumping and the likelihood of
material injury with respect to CTVs from the PRC. We further find
there have been massive imports of CTVs over a relatively short period
from each of the mandatory respondents. Given the analysis summarized
above, and described in more detail in the Critical Circumstances Memo,
we preliminarily determine critical circumstances exist for imports of
CTVs produced in and exported from the PRC.
In accordance with section 733(e)(2) of the Act, upon issuance of
an affirmative preliminary determination of sales at LTFV in the
investigation with respect to CTVs from the PRC, the Department will
direct the CBP to suspend liquidation of all entries of CTVs from the
PRC that are entered, or withdrawn from warehouse, for consumption on
or after 90 days prior to the date of publication in the Federal
Register of our preliminary determination in this investigation. The
CBP shall require a cash deposit or posting of a bond equal to the
estimated preliminary dumping margins reflected in the preliminary
determinations published in the Federal Register. The suspension of
liquidation to be issued after our preliminary determination will
remain in effect until further notice. We will make a final
determination concerning critical circumstances for all producers and
exporters of subject merchandise from the PRC when we make our final
determination in this investigation, which will be 135 days after the
date of publication of the preliminary determination.
[[Page 66810]]
Verification
As provided in section 782(i) of the Act, we intend to verify all
information relied upon in making our final determination.
Suspension of Liquidation
In accordance with section 733(d)(2) of the Act, we are directing
the CBP to suspend liquidation of all imports of subject merchandise
from the PRC entered, or withdrawn from warehouse, for consumption on
or after 90 days prior to the date of publication of this notice in the
Federal Register. We are also instructing the CBP to require a cash
deposit or the posting of a bond equal to the weighted-average dumping
margin for all entries of CTVs from the PRC. These suspension of
liquidation instructions will remain in effect until further notice.
The weighted-average dumping margins are as follows:
------------------------------------------------------------------------
Weighted-
average Critical
Manufacturer/Exporter margin (in circumstances
percent)
------------------------------------------------------------------------
Haier Electric Appliances 40.84 Yes.
International Co.
Hisense Import and Export Co., Ltd.. 40.84 Yes.
Konka Group Company, Ltd............ 27.94 Yes.
Philips Consumer Electronics Co. of 40.84 Yes.
Suzhou Ltd.
Shenzhen Chaungwei-RGB Electronics 40.84 Yes.
Co., Ltd.
Sichuan Changhong Electric Co., Ltd. 45.87 Yes.
Starlight International Holdings, 40.84 Yes.
Ltd.
Star Light Electronics Co., Ltd..... 40.84 Yes.
Star Fair Electronics Co., Ltd...... 40.84 Yes.
Starlight Marketing Development Ltd. 40.84 Yes.
SVA Group Co., Ltd.................. 40.84 Yes.
TCL Holding Company Ltd............. 31.35 Yes.
Xiamen Overseas Chinese Electronic 31.70 Yes.
Co., Ltd.
PRC-wide............................ 78.45 Yes.
------------------------------------------------------------------------
The PRC-wide rate applies to all entries of the subject merchandise
except for entries from exporters/producers that are identified
individually above.
Disclosure
We will disclose the calculations performed within five days of the
date of publication of this notice to parties in this proceeding in
accordance with 19 CFR 351.224(b).
ITC Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of our determination. If our final determination is affirmative,
the ITC will determine whether these imports are materially injuring,
or threaten material injury to, the U.S. industry. The deadline for
that ITC determination would be the later of 120 days after the date of
this preliminary determination or 45 days after the date of our final
determination.
Public Comment
Case briefs for this investigation must be submitted no later than
seven days after the date of the final verification report issued in
this proceeding. Rebuttal briefs must be filed five days from the
deadline date for case briefs. A list of authorities used, a table of
contents, and an executive summary of issues should accompany any
briefs submitted to the Department. Executive summaries should be
limited to five pages total, including footnotes. See 19 CFR 351.309.
Section 774 of the Act provides that the Department will hold a
hearing to afford interested parties an opportunity to comment on
arguments raised in case briefs, provided that such a hearing is
requested by any interested party. If a request for a hearing is made
in this investigation, the hearing will tentatively be held two days
after the deadline for submission of the rebuttal briefs at the U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230. Parties should confirm by telephone the time,
date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if
one is requested, must submit a written request within 30 days of the
publication of this notice. Requests should specify the number of
participants and provide a list of the issues to be discussed. Oral
presentations will be limited to issues raised in the briefs. See 19
CFR 351.310.
We will make our final determination no later than 135 days after
the date of this preliminary determination, pursuant to section
735(a)(2) of the Act.
This determination is published pursuant to sections 733(f) and
777(i) of the Act.
Dated: November 21, 2003.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 03-29721 Filed 11-26-03; 8:45 am]