[Federal Register Volume 60, Number 10 (Tuesday, January 17, 1995)]
[Notices]
[Pages 3391-3392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1080]



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DEPARTMENT OF COMMERCE
[A-583-009]


Color Television Receivers, Except for Video Monitors, From 
Taiwan; Court Decision and Suspension of Liquidation

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

ACTION: Notice of court decision and suspension of liquidation.

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SUMMARY: On October 21, 1994, in the case of Zenith Electronics 
Corporation v. United States, Slip Op. 94-170 (Zenith), the United 
States Court of International Trade (the Court) affirmed the Department 
of Commerce's (the Department's) third results of redetermination on 
remand and prior remand determinations of the final results of the 
first administrative review of the antidumping duty order on color 
television receivers, except for video monitors (CTVs), from Taiwan to 
the extent that they were not subsequently modified by the Court. The 
Court also vacated its July 29, 1991, order to the extent that the 
order held that ``no assessment rate cap may be applied in liquidating 
the subject entries unless the importer paid a cash duty for an 
estimated dumping duty.'' As a result, the Court ordered the Department 
to apply the assessment rate cap to all subject imports entered between 
the publication dates of the Department's preliminary affirmative 
determination of sales at less than fair value (LTFV) and the 
International Trade Commission's (ITC's) final affirmative injury 
[[Page 3392]] determination. Consistent with the decision of the United 
States Court of Appeals for the Federal Circuit (Federal Circuit) in 
Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), 
the Department will not order the liquidation of the subject 
merchandise entered or withdrawn from warehouse for consumption prior 
to a ``conclusive'' decision in this case.

EFFECTIVE DATE: October 31, 1994.
FOR FURTHER INFORMATION CONTACT:
Karin Price or Maureen Flannery, Office of Antidumping Compliance, 
Import Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Washington, D.C. 20230, telephone: (202) 
482-4733.

SUPPLEMENTARY INFORMATION:

Background

    On December 29, 1986, the Department published in the Federal 
Register the final results of the first administrative review of CTVs 
from Taiwan (51 FR 46895, December 29, 1986). In those results, the 
Department set forth its finding of weighted-average margins for nine 
companies during the period of review, October 19, 1983, through March 
31, 1985, and announced its intent to instruct the U.S. Customs Service 
to assess antidumping duties on all appropriate entries.
    Subsequent to the Department's final results, four of the reviewed 
companies and the domestic producer, Zenith, filed lawsuits with the 
Court challenging these results. Thereafter, the Court issued an order 
and Opinion dated September 11, 1989, in AOC International Inc. et. al. 
v. United States, Court No. 87-01-00122, 721 F. Supp. 314, remanding 
the Department's determination so that the Department could make 
reasonable allowances for bona fide differences in warranty expenses 
between the United States and the home market; recharacterize Sampo 
Corp.'s bad debt expenses as directly-related selling expenses; and 
reconsider its methodology for advertising and sales promotion expenses 
for AOC International Inc. (AOC). The Department requested a voluntary 
remand to recalculate constructed value (CV) for Tatung Co. (Tatung); 
recalculate AOC's inland freight claim and explain the calculation 
methodology; adjust Tatung's foreign market value for discounts and 
rebates which Tatung paid to distributors for trade-ins of used CTVs by 
the dealers in the home market; and add the amount of commodity taxes 
forgiven upon exportation of CTVs to the United States price (USP). On 
January 31, 1991, the Department filed its required and voluntary 
remand results with the Court.
    On July 29, 1991, the Court, in Zenith Electronics Corporation v. 
United States (Slip Op. 91-66, July 29, 1991), ordered a second remand 
so that the Department could determine the amount of commodity tax 
passed through to home market purchasers and add that amount to the 
USP; cease applying an assessment rate cap in liquidating entries of 
the subject merchandise unless the importer paid a cash deposit for an 
estimated antidumping duty; change its CV calculations in order to 
eliminate the use of circumstance-of-sale adjustments to the extent 
that they reduce CV general expenses to less than the statutory minimum 
amount when CV is used because there are insufficient sales in the home 
market; remove from exporter's sales price (ESP) all home market 
export-related expenses and exclude such expenses from the ESP offset 
claim; request additional information from AOC in order to remove from 
USP import duties paid with respect to home market models, and add 
instead the import duties forgiven with respect to the exported models; 
investigate whether Shin-Shirasuna Electronic Co.'s (Shirasuna's) sales 
to Canada were fictitious so as to manipulate the fair market value of 
the imports to the United States and thereby minimize the antidumping 
duty liability; recalculate Capetronic (BSR) Ltd.'s (Capetronic's) 
dumping margins using production data related to a specific sale 
instead of using the weighted-average costs of production; remove from 
USP the value of certain proprietary selling expenses for Shirasuna; 
and correct certain programming errors. In addition, the Department 
requested a remand to explain the reasons underlying its de minimis 
determination. On January 31, 1992, the Department filed its second 
remand results with the Court.
    On January 28, 1993, the Court ordered a third remand so that the 
Department could reconsider the pass-through of tax in a manner 
consistent with the constant costs, imperfect competition, and price-
setting ability found in the Taiwan market. In addition, the Court 
ordered the Department to ``cap'' the amount of foreign tax added to 
USP; to make a second level adjustment for the difference in 
circumstances of sale included in the U.S. and home market taxable 
values; to insure that the general expenses component of CV was not 
reduced at any time to less than the statutory minimum amount by reason 
of adjustments for selling expenses associated with disregarded home 
market sales; and to correct two clerical errors. On May 5, 1993, the 
Department filed its third remand results with the Court.
    On October 21, 1994, the Court, in Zenith, affirmed the 
Department's third remand results, and affirmed the prior remand 
determinations in this case to the extent that they were not 
subsequently modified by the Court. The Court also vacated its July 29, 
1991, order to the extent that the order held that ``no assessment rate 
cap may be applied in liquidating the subject entries unless the 
importer paid a cash duty for an estimated dumping duty.'' As a result, 
the Court ordered the Department to apply the assessment rate cap to 
all subject imports entered between the publication dates of the 
Department's preliminary affirmative determination of sales at LTFV and 
the ITC's final affirmative injury determination, and it dismissed the 
case.

Suspension of Liquidation

    In its decision in Timken, the Federal Circuit held that the 
Department must publish notice of a decision of the Court or Federal 
Circuit which is not ``in harmony'' with the Department's 
determination. Publication of this notice fulfills this obligation. The 
Federal Circuit also held that in such a case, the Department must 
suspend liquidation until there is a ``conclusive'' decision in the 
action. The option of appealing this decision is being weighed, and a 
``conclusive'' decision can not be reached until the opportunity to 
appeal expires, or any appeal is decided by the Federal Circuit. 
Therefore, the Department will continue to suspend liquidation pending 
the expiration of the period to appeal or pending a final decision of 
the Federal Circuit if Zenith is appealed.

    Dated: January 9, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-1080 Filed 1-13-95; 8:45 am]
BILLING CODE 3510-DS-M