[Federal Register Volume 59, Number 45 (Tuesday, March 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5184]


[[Page Unknown]]

[Federal Register: March 8, 1994]


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DEPARTMENT OF COMMERCE
[A-580-601]

 

Stainless Steel Cooking Ware From the Republic of Korea; Final 
Results of Antidumping Duty Administrative Review

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

ACTION: Notice of final results of antidumping duty administrative 
review.

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SUMMARY: On September 27, 1993, the Department of Commerce (the 
Department) published the preliminary results of the administrative 
review of the antidumping duty order on certain stainless steel cooking 
ware from the Republic of Korea. The review covers one manufacturer/
exporter of this merchandise to the United States and the period 
January 1, 1990 through December 31, 1990. We gave interested parties 
an opportunity to comment on the preliminary results. We received 
comments from the petitioner. Based on our analysis of these comments, 
we have changed the final results from those presented in the 
preliminary results of review.

EFFECTIVE DATE: March 8, 1994.

FOR FURTHER INFORMATION CONTACT:
Debra Crumbie or Michael J. Heaney, Office of Antidumping Compliance, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone (202) 482-5253.

SUPPLEMENTARY INFORMATION:

Background

    On September 27, 1993, the Department published in the Federal 
Register (58 FR 50347) the preliminary results of the administrative 
review of certain stainless steel cooking ware from the Republic of 
Korea (52 FR 2139, January 20, 1987). The Department has now completed 
the review in accordance with section 751 of the Tariff Act of 1930, as 
amended (the Tariff Act).

Scope of the Review

    The products covered by this administrative review are certain 
stainless steel cooking ware from the republic of Korea. During the 
review period, such merchandise was classifiable under Harmonized 
Tariff Schedule (HTS) item number 7323.93.00. The products covered by 
this order are skillets, frying pans, omelette pans, saucepans, double 
boilers, stock pots, dutch ovens, casseroles, steamers, and other 
stainless steel vessels, all for cooking on stove top burners, except 
tea kettles and fish poachers. Excluded from the scope is stainless 
steel kitchen ware. The HTS item numbers are provided for convenience 
and Customs purposes. The written description remains dispositive as to 
the scope of the product coverage. The review covers Namil Metal 
Company, Ltd. (Namil), and the period January 1, 1990 through December 
31, 1990 (POR).

Analysis of Comments Received

    We gave interested parties an opportunity to comment on the 
preliminary results of review. We received comments from the 
petitioner, Farberware, Inc. (Farberware).
    Comment 1: Farberware states that, in the computer program for the 
preliminary results, the Department incorrectly adjusted for 
differences in the physical characteristics of similar third-country 
and U.S. products by subtracting total cost of manufacturing for third-
country merchandise, expressed in the computer program as ``TDCOM,'' 
from the cost of manufacturing for U.S. products, expressed in the 
computer program as ``USCOM,'' to determine the difference in 
merchandise (DIFMER) adjustment. Farberware maintains that TDCOM and 
USCOM include both variable and non-variable manufacturing costs for 
third-country and U.S. merchandise, respectively.
    Farberware argues that the Department should, in accordance with 
its established practice, revise the preliminary results computer 
program to compare third-country variable cost of manufacturing, 
expressed in the computer program as ``TDVARCOM,'' to U.S. variable 
cost of manufacturing, expressed in the computer program as 
``USVARCOM''.
    Department's Position: We agree with Farberware. As is consistent 
with our practice, we based our adjustment for the DIFMER on the 
differences in variable cost of manufacture (COM) between similar 
third-country and U.S. products.
    Comment 2: Farberware argues that the DIFMER adjustment was very 
substantial for many third-country comparison models. Farberware 
asserts that even after the Department changes the computer 
instructions to calculate the DIFMER using variable COM rather than 
total COM, many of the DIFMER adjustments may be in excess of 20 
percent of the total COM of the U.S. merchandise being compared.
    In addition to limiting the DIFMER adjustment to differences in the 
variable cost of manufacture, Farberware urges the Department to adhere 
to its general practice and to use constructed value (CV) as the basis 
for determining foreign market value (FMV) for those comparisons in 
which the DIFMER adjustment exceeds 20 percent of the total COM of the 
U.S. merchandise being compared.
    Department's Position: We agree with Farberware. Where the 
difference in variable COM between a third-country model and a U.S. 
model exceed 20 percent of the total COM of the U.S. merchandise, in 
our final results, we used CV as the basis for FMV.
    Comment 3: Farberware maintains that the Department's choice of the 
best information available (BIA) in the preliminary results of review 
is inappropriate. (The Department used the highest rate from a previous 
review as BIA to calculate margins for sales for which Namil provided 
no model-match or CV data. As BIA, the Department used the dumping 
margin of 1.69 percent as was established in the administrative review 
of Namil's sales which covered the period January 1, 1989 through 
December 31, 1989.)
    Farberware maintains that the Department asked Namil in a 
supplemental questionnaire regarding sales during the period of review 
to provide similar third-country matches for all sales to the United 
States, and to provide CV data for United States sales for which there 
were no similar matches. Because Namil failed to provide a revised 
computer tape product concordance file and failed to provide the 
requested CV data, Farberware suggests that the Department use as BIA 
the highest margin the Department calculates for any U.S. sale for 
Namil in the final margin calculation of this administrative review.
    Thus, Farberware argues that the Department should apply the 
highest margin calculated for any U.S. sale by Namil to the total net 
value of all sales to the United States of those U.S. transactions for 
which there was no model match or CV information.
    Department's Position: We agree with Farberware that BIA should be 
applied to those sales for which no model match or CV information has 
been provided by Namil. However, we maintain that the Department's 
choice of BIA in the preliminary results of administrative review was 
appropriate.
    In accordance with section 776(c) of the Tariff Act, we use BIA in 
cases where a party refuses or is unable to produce information 
requested in a timely manner and in the form required. In cases where a 
firm is deemed cooperative, but fails to supply certain FMV information 
(e.g., corresponding home market sales within the contemporaneous 
period or constructed value data for a few U.S. sales), we apply a BIA 
rate to the particular U.S. transactions involved. In such situations, 
we use as BIA the higher of (1) the highest rate ever applicable to the 
firm for the same class or kind of merchandise from either the LTFV 
investigation or a prior administrative review, or if the firm has 
never been investigated or reviewed, the all others rate from the LTFV 
investigation; or (2) the highest calculated rate in this review for 
the class or kind of merchandise for any firm from the same country of 
origin (see Antifriction Bearings (Other Than Tapered Roller Bearings) 
and Parts Thereof from France, et al, Final Results of Antidumping Duty 
Administrative Review, 58 FR 39729, 39739 July 26, 1993).
    Namil responded to our questionnaire. Namil, however, failed to 
provide either (1) such or similar third-country matches or (2) 
constructed value information for some of its U.S. sales during the 
period of review. Since Namil attempted to cooperate, we applied a rate 
of 1.69 percent, the highest rate ever applicable to Namil for the 
subject merchandise (See Certain Stainless Steel Cooking Ware from the 
Republic of Korea; Final Results of Antidumping Duty Administrative 
Review, 56 FR 38114, August 12, 1991), to U.S. sales for which Namil 
failed to give either model-match or CV information.
    Comment 4: Farberware disagrees with the Department's preliminary 
decision to exclude from its analysis those U.S. sales for which Namil 
submitted a gross price of zero. Farberware further states that Namil 
never explained why these sales had a gross price of zero.
    Farberware maintains that the zero gross price has never been shown 
to represent anything other than the actual price charged for these 
U.S. sales. Thus, Farberware argues that the Department should include 
all reported U.S. sales with a gross price of zero in the calculation 
of Namil's dumping margin in the final results of review.
    Department's Position: We agree with Farberware and have included 
these sales in our calculations.
    Comment 5: Farberware argues that the Department treated U.S. 
direct selling expenses, expressed as ``DIRECTP'' in the computer 
program, incorrectly by deducting DIRECTP from FMV instead of adding it 
to FMV.
    Farberware states that the Department's standard practice in 
purchase price comparisons is to add U.S. direct selling expenses to 
FMV.
    Department's Position: We agree with Farberware. The revised 
computer program instructions have corrected this clerical error. In 
these final results, we added U.S. circumstance-of-sale adjustments to 
FMV, as is our standard practice in purchase price comparisons.
    Comment 6: Farberware maintains that the Department failed to 
deduct the direct selling expenses of ``letter of credit advice.'' 
expressed as ``LCADV''in the computer program, and ``marine insurance 
expense,'' expressed as ``MARINST'' in the computer program, from the 
net prices used in the sales below cost test. Farberware states that 
such a deduction should be made because the selling, general, and 
administrative expenses reported by Namil and included in our sales 
below cost test were net of all direct selling expenses.
    Department's Position: We agree with Farberware. In our final 
results, we have deducted letter of credit and marine insurance 
expenses from the net prices used in the sales below cost test.

Final Results of Review

    As a result of our review, we have determined that a dumping margin 
exists for the period as follows: 

------------------------------------------------------------------------
                                                                Margin  
         Manufacturer/exporter               Time period      (percent) 
------------------------------------------------------------------------
Namil Metal Co., Ltd...................     1/1/90-12/31/90         1.06
------------------------------------------------------------------------

    The Department shall instruct the Customs Service to assess 
antidumping duties on all appropriate entries. Individual differences 
between the United States price and FMV may vary from the percentage 
stated above. The Department will issue appraisement instructions 
directly to the Customs Service.
    Furthermore, the following deposit requirements will be effective 
upon publication of these final results of administrative review for 
all shipments of the subject merchandise entered, or with drawn from 
warehouse, for consumption, as provided for by section 751(a)(1) of the 
Tariff Act:
    (1) The cash deposit rate for the reviewed company will be the rate 
determined above;
    (2) For previously reviewed or investigated companies not listed 
above, the cash deposit rate will continue to be the company-specific 
rate published for the most recent period;
    (3) If the exporter is not a firm covered in this review, a prior 
review, or the original less than fair value (LTFV) investigation, but 
the manufacturer is, the cash deposit rate will be the rate established 
for the most recent period for the manufacturer of the merchandise; and
    (4) If neither the exporter nor the manufacturer is a firm covered 
in this or any previous review conducted by the Department, the cash 
deposit rates will be the ``all others'' rate established in the LTFV 
investigation, as discussed below.
    On May 25, 1993, the United States Court of International Trade 
(CIT), in Floral Trade Council v. United States, Slip Op. 93-79, and 
Federal-Mogul Corporation and the Torrington Company v. United States, 
Slip Op. 93-83, decided that once a company is assigned an ``all 
others'' rate, that rate can only be changed through an administrative 
review. The Department has determined that in order to implement these 
decisions, it is appropriate to reinstate the ``all others'' rate from 
the LTFV investigation (or that rate as amended for the correction of 
clerical errors or as a result of litigation) in proceedings governed 
by antidumping duty orders for purposes of establishing cash deposits 
in all current and future administrative reviews.
    Because this proceeding is governed by an antidumping duty order, 
the ``all others'' rate for the purposes of this review will be 8.10 
percent, the ``all others'' rate established in the final notice of the 
LTFV investigation by the Department (52 FR 2139, January 20, 1987).
    Article VI, paragraph 5 of the General Agreement on Tariffs and 
Trade provides that ``[n]o product * * * shall be subject to both 
antidumping and countervailing duties to compensate for the same 
situation of dumping and export subsidization.'' This provision is 
implemented by section 772(d)(1)(D) of the Tariff Act. Since 
antidumping duties cannot be assessed on the portion of the margin 
attributable to export subsidies, we will instruct the Customs Service 
to subtract the level of export subsidies as determined in Certain 
Stainless Steel Cooking Ware from the Republic of Korea; Countervailing 
Duty Order, 52 FR 2140 (January 20, 1987), which is 0.78 percent ad 
volorem, from the dumping margin for assessment and cash deposit 
purposes. There have been no reviews conducted since the publication of 
the countervailing duty order.
    This notice also serves as a final reminder to importers of their 
responsibility under 19 CFR 353.26 to file a certificate regarding the 
reimbursement of antidumping duties prior to liquidation of the 
relevant entries during this review period. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This notice also serves as a reminder to parties subject to 
administrative protective orders (APOs) of their responsibility 
concerning the disposition of proprietary information disclosed under 
an APO in accordance with 19 CFR 353.34(d). Timely written notification 
of the return/destruction of APO materials or conversion to judicial 
protective order is hereby requested. Failure to comply with the 
regulations and the terms of an APO is a sanctionable violation.
    This administrative review and notice is in accordance with section 
751(a)(1) of the Tariff Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.


    Dated: February 28, 1994.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 94-5184 Filed 3-7-94; 8:45 am]
BILLING CODE 3510-DS-P-M