[Federal Register Volume 59, Number 9 (Thursday, January 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-891]


[[Page Unknown]]

[Federal Register: January 13, 1994]


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DEPARTMENT OF COMMERCE
[A-588-829]

 

Notice of Final Determination of Sales at Less Than Fair Value: 
Defrost Timers From Japan

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

EFFECTIVE DATE: January 13, 1994.

FOR FURTHER INFORMATION CONTACT: Bill Crow, Office of Antidumping 
Investigations, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0116.

FINAL DETERMINATION: We determine that defrost timers from Japan are 
being, or are likely to be, sold in the United States at less than fair 
value, as provided in section 735 of the Tariff Act of 1930, as amended 
(the Act). The estimated margin is shown in the ``Suspension of 
Liquidation'' section of this notice.

Case History

    Since the preliminary determination of sales at less than fair 
value and the postponement of the final determination in this 
investigation on August 24, 1993 (58 FR 44655, August 24, 1993), the 
following events have occurred. On September 15, 1993, Sankyo Seiki 
Manufacturing Co. Ltd. (Sankyo) submitted its response to the 
Department's second deficiency letter. On September 30, 1993, the 
Department sent Sankyo the agenda outlining the format of the 
Department's verification of Sankyo's responses. From October 18 
through October 22, 1993, the Department conducted the verification of 
Sankyo's questionnaire response in Japan. On November 26, 1993, 
petitioner submitted its case brief in this investigation. On December 
2, 1993, Sankyo submitted its rebuttal brief in this investigation.

Scope of Investigation

    For purposes of this investigation, defrost timers are electro-
mechanical and electronic defrost timers for residential refrigerators. 
Electro-mechanical defrost timers are comprised of several components 
that make or break electric circuits by activating two sets of 
electrical contact points--one to disconnect the compressor (the 
cooling mechanism) and the other to connect the defrost heater. The 
articles are equipped with a synchronous or subsynchronous motor. The 
defrost timer disconnects the compressor by opening an electrical 
circuit after the compressor itself has run for a length of time 
predetermined by the manufacturer depending on the specifications of 
the model. Upon completion of the compressor run cycle (and 
simultaneously with the compressor's disconnection) the defrost heater 
is activated and runs for a preset time (again depending on the model), 
as predetermined by the manufacturer. Electronic defrost timers have a 
similar function but operate with greater efficiency. This is because a 
microprocessor in the device uses information gathered during the 
defrost cycle to adjust the compressor run time. This system defrosts 
only when needed, thereby improving the efficiency of the refrigerator.
    The defrost timers subject to this investigation are currently 
classifiable under subheading 9107.00.4000 of the Harmonized Tariff 
Schedule of the United States (HTSUS). The HTSUS subheadings are 
provided for convenience and customs purposes. The written description 
of the scope of this investigation is dispositive.

Period of Investigation (POI)

    We initiated this investigation using a six-month POI from July 1, 
1992, through December 30, 1992. In order to capture U.S. sales made 
pursuant to long-term contracts, we expanded the POI to include two 
additional six-month periods (i.e., April 30-September 30, 1991, and 
October 1, 1991-March 31, 1992). Respondent reported home market sales 
in these periods to correspond to U.S. sales contracted in July 1991 
and January 1992, respectively (see memorandum from Richard Moreland to 
Barbara Stafford dated June 4, 1993).

Best Information Available

    We have determined, in accordance with section 776(b) and 776(c) of 
the Act, that the use of best information available (BIA) is 
appropriate for sales of subject merchandise in this investigation. In 
deciding whether to use BIA, section 776(b) provides that the 
Department shall use BIA if it is unable to verify the accuracy of the 
information submitted. Further, section 776(c) provides that the 
Department may take into account whether the respondent was able to 
produce information requested in a timely manner and in the form 
required. In this case, Sankyo did not do so.
    The Department also took into consideration whether or not the 
respondent cooperated with the Department. In this case, while its 
submissions contained significant deficiencies, and could not be 
completely verified, the respondent was cooperative. As BIA for Sankyo, 
we are assigning the average margin contained in the petition, in 
accordance with the two-tiered BIA methodology under which the 
Department imposes a less adverse rate upon those respondents that 
cooperate in the proceeding. The Department's two-tier methodology for 
assigning BIA based on the degree of respondents' cooperation has been 
upheld by the U.S. Court of Appeals for the Federal Circuit. (See 
Allied-Signal Aerospace Co. v. the United States, Appeal No. 93-1049 
(Fed. Cir. June 22, 1993); see also Krupp Stahl AG. et al v. the United 
States, 822 F. Supp. 789 (CIT May 26, 1993).) The average of the 
margins contained in the petition is 83.67 percent. For a more detailed 
discussion of the Department's decision to use BIA in this case, see 
the December 16, 1993, memorandum from David Binder to Barbara 
Stafford.

Interested Party Comments

    Comment 1: Petitioner argues that due to the various discrepancies 
and deficiencies discovered by the Department at verification, the 
Department should use the dumping margins calculated in the petition as 
BIA. Petitioner bases its request for the use of BIA on the portion of 
home market sales omitted from respondent's sales listing, the improper 
matching of certain U.S. and home market models, the unverifiable 
assembly costs included in the difference in merchandise (difmer) 
adjustment, the unverifiable warranty expenses, and the pattern of 
contracting which existed for home market sales and which called into 
question respondent's reported home market sales.
    Respondent, on the other hand, argues that the Department should 
reject petitioner's request for the use of BIA across the board because 
respondent has cooperated in the investigation and because the large 
majority of its response has been verified as complete. Therefore, 
respondent requests that the Department limit the use of BIA only to 
those instances where deficiencies or discrepancies were found during 
verification.
    DOC Position: We agree with petitioner. We learned at verification 
of home market sales which respondent omitted from its reported 
database. In addition, we discovered that respondent had eliminated 
many sales because it believed them not to be subject to the 
investigation based on the channel of trade and/or ultimate use of the 
timer models in question; however, respondent had not disclosed these 
eliminations in its responses to the Department's questionnaire. 
Because of these late revelations, the Department was not able to 
structure verification to scrutinize thoroughly these unreported sales. 
We also established that a pattern of contracting existed for home 
market sales which raises questions as to the validity of respondent's 
determination of home market date of sale. The use of contract dates in 
the home market, rather than the reported order entry dates, would 
change completely the selection of transactions used to calculate 
foreign market value. In combination with other discrepancies, these 
problems call into question the reliability of the home market 
database.
    We also learned at verification that a very significant portion of 
U.S. products representing a majority of U.S. sales had not been 
matched correctly to home market models in accordance with the 
instructions contained in Appendix V of the Department's questionnaire. 
The Department cannot be responsible for rematching this large 
percentage of the total data base. Further, the mismatched U.S. models 
could only be re-matched to a limited set of similar home market sales 
for which no difmer information had been provided by respondent. 
Therefore, the majority of U.S. sales would be subject to some form of 
BIA. In combination with other discrepancies, these problems call into 
question the reliability of the entire U.S. database. Due to the number 
and extent of the discrepancies discovered at the verification, the 
Department is basing the final determination in this investigation on 
BIA.
    In spite of the outcome at verification, we find that the 
respondent cooperated in this investigation. The numerous mistakes, 
omissions and deficiencies which were not corrected, clarified or 
amplified in a timely manner require the use of BIA. While some of 
these deficiencies, by themselves, may not have led to the use of total 
BIA, the collective discrepancies and deficiencies discovered at 
verification undermine the basic reliability of the submitted 
information.
    Given the Department's use of BIA, other comments submitted by the 
parties in their briefs in this investigation are moot, and will not be 
addressed in this notice.

Continuation of Suspension of Liquidation

    In accordance with section 735 of the Act, we are directing the 
Customs Service to continue to suspend liquidation of all entries of 
defrost timers produced or exported from Japan, that are entered, or 
withdrawn from warehouse, for consumption on or after August 24, 1993. 
The Customs Service shall require a cash deposit or posting of a bond 
equal to the estimated final dumping margin, as shown below. The 
suspension of liquidation will remain in effect until further notice. 

------------------------------------------------------------------------
                                                                Margin  
               Manufacturer/producer/exporter                 percentage
                                                                        
------------------------------------------------------------------------
Sankyo Seiki Manufacturing Co. Ltd..........................      83.67 
All others..................................................     83.67  
------------------------------------------------------------------------

International Trade Commission Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (ITC) of our determination.

Notification to Interested Parties

    This notice also serves as the only reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 353.34(d). Failure to 
comply is a violation of the APO.
    This determination is published pursuant to section 735(d) of the 
Act (19 U.S.C. 1673d(d)) and 19 CFR 353.20(a)(4).


    Dated: January 6, 1994.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 94-891 Filed 1-12-94; 8:45 am]
BILLING CODE 3510-DS-P