[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Notices]
[Pages 20223-20225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11127]



-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE
[A-588-005]


High Power Microwave Amplifiers and Components Thereof From 
Japan; Preliminary Results of Antidumping Duty Administrative Review

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

ACTION: Notice of preliminary results of Antidumping Duty 
Administrative Review.

-----------------------------------------------------------------------

SUMMARY: In response to a request by the petitioner, MCL, Inc., the 
Department of Commerce (the Department) is conducting an administrative 
review of the antidumping duty order on high power microwave amplifiers 
and components thereof (HPMAs) from Japan. This review covers NEC 
Corporation (NEC), a manufacturer/exporter of this merchandise to the 
United States, and the period July 1, 1994, through June 30, 1995. The 
firm failed to submit a response to our questionnaire. As a result, we 
have preliminarily determined to use facts otherwise available for cash 
deposit and appraisement purposes.
    Interested parties are invited to comment on these preliminary 
results. Parties who submit arguments in this proceeding are requested 
to submit with the arguments: (1) a statement of the issues and (2) a 
brief summary of the arguments.

EFFECTIVE DATE: May 6, 1996.

FOR FURTHER INFORMATION CONTACT: Hermes Pinilla or Michael Rill, Office 
of Antidumping Compliance, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Washington, DC 20230; telephone: (202) 482-
4733.

SUPPLEMENTARY INFORMATION:

Applicable Statute

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (the Act) by the 
Uruguay Round Agreements Act (URAA).

Background

    On July 31, 1995, the petitioner, MCL, Inc., requested in 
accordance with section 353.22(a) of the Department's regulations (19 
CFR 353.22(a)) an administrative review of the antidumping duty order 
(47 FR 31413, July 20, 1982) on HPMAs from Japan with respect to NEC, a 
manufacturer/exporter of this merchandise to the United States, and 
covering the period July 1, 1994, through June 30, 1995. We published a 
notice of initiation of the review on August 16, 1995 (60 FR 42500). 
The Department is now conducting this review in accordance with section 
751 of the Act.

Scope of the Review

    The products covered by this review are high power microwave 
amplifiers and components thereof. High power microwave amplifiers are 
radio-frequency power amplifier assemblies, and components thereof, 
specifically designed for uplink transmission in C, X, and Ku bands 
from fixed earth stations to communications satellites and having a 
power output of one kilowatt or more. High power microwave amplifiers 
may be imported in subassembly form, as complete amplifiers, or as a 
component of higher level assemblies (generally earth stations). This 
merchandise is currently classifiable under item 8525.10.80 of the 
Harmonized Tariff Schedule (HTS). The HTS item number is provided for 
convenience and customs purposes. The written description remains 
dispositive.
    The review covers NEC and the period July 1, 1994, through June 30, 
1995 (POR).

Use of Facts Otherwise Available

    We preliminarily determine, in accordance with section 776(c) of 
the Act, that the use of facts available is appropriate for NEC because 
it did not respond to the Department's antidumping questionnaire. We 
sent NEC a questionnaire seeking information necessary to conduct a 
review of NEC's sales of merchandise subject to this review. NEC did 
not respond to the questionnaire. Rather, NEC submitted a letter on 
January 18, 1996, stating that unrelated third parties

[[Page 20224]]

outside Japan sold subject merchandise to customers in the United 
States during the POR, but that NEC was ``not in a position to respond 
to the questionnaire based on the sales of subject merchandise made by 
unaffiliated third parties * * *.'' On February 15, 1996, the 
Department requested NEC to clarify whether NEC knew, or had reason to 
know, the ultimate destination of subject merchandise sold to these 
unaffiliated parties and requested NEC to report its sales to these 
customers as U.S. sales. NEC submitted a letter on February 26, 1996, 
stating that, at the time of sale, NEC had, or had reason to have, 
knowledge that the ultimate destination of the subject merchandise 
would be the United States. NEC asserted, however, that it was neither 
feasible nor appropriate for NEC to respond to the Department's 
questionnaire based upon these indirect sales. NEC again referred to 
its inability to provide information concerning sales of unaffiliated 
parties, but did not explain why it is not feasible to report its own 
sales of subject merchandise.
    Because necessary information is not available on the record for 
the 1994-95 POR as a result of NEC withholding the requested 
information, we must make our preliminary determination based on facts 
otherwise available (section 776(a) of the Act).
    The Department finds that, in not responding to the questionnaire, 
NEC failed to cooperate by not acting to the best of its ability to 
comply with a request for information from the Department.
    Where the Department must base the entire dumping margin for a 
respondent in an administrative review on the facts available because 
that respondent failed to cooperate, section 776(b) of the Act 
authorizes the Department to use an inference adverse to the interests 
of that respondent in choosing the facts available. Section 776(b) of 
the Act also authorizes the Department to use as adverse facts 
available information derived from the petition, the final 
determination, a previous administrative review, or other information 
placed on the record. Because information from prior segments of the 
proceeding constitutes secondary information, section 776(c) of the Act 
provides that the Department shall, to the extent practicable, 
corroborate that secondary information from independent sources 
reasonably at its disposal. The Statement of Administrative Action 
(SAA) provides that ``corroborate'' means that the Department will 
satisfy itself that the secondary information to be used has probative 
value. See H.R. DOC. No.316, Vol. 1, 103d Cong., 2d Sess. 870 (1994).
    To corroborate secondary information, the Department will, to the 
extent practicable, examine the reliability and relevance of the 
information to be used. However, unlike for other types of information, 
such as input costs or selling expenses, there are no independent 
sources for calculated dumping margins. The only source for margins is 
administrative determinations. Thus, in an administrative review, if 
the Department chooses as total adverse facts available a calculated 
dumping margin from a prior segment of the proceeding, it is not 
necessary to question the reliability of the margin for that time 
period. With respect to the relevance aspect to corroboration, however, 
the Department will consider information reasonably at its disposal as 
to whether there are circumstances that would render a margin not 
relevant. Where circumstances indicate that the selected margin is not 
appropriate as adverse facts available, the Department will disregard 
the margin and determine an appropriate margin (see, e.g., Fresh Cut 
Flowers from Mexico; Final Results of Antidumping Duty Administrative 
Review, 61 FR 6812 (February 22, 1996) (the Department disregarded the 
highest margin in that case as adverse BIA because the margin was based 
on another company's uncharacteristic business expense resulting in an 
unusually high margin)).
    In this case, the highest rate applicable to NEC from any prior 
segment of the proceeding is 41.4 percent. This is a margin calculated 
in the original investigation using information provided by NEC. We 
have selected 41.4 percent as the facts available margin for this POR. 
To the best of our knowledge, there are no circumstances indicating 
that this margin is inappropriate as adverse facts available (see High 
Power Microwave Amplifiers and Components From Japan; Final 
Determination of Sales at Less Than Fair Value, 47 FR 22134 (May 21, 
1982)).

Preliminary Results of the Review

    As a result of our review, we preliminarily determine that a margin 
of 41.4 percent exists for NEC for the period July 1, 1994, through 
June 30, 1995.
    Any interested party may request a hearing within 10 days of 
publication. Any hearing, if requested, will be held 44 days after the 
date of publication, or the first workday thereafter. Case briefs and/
or written comments from interested parties may be submitted not later 
than 30 days after the date of publication of this notice. Rebuttal 
briefs and rebuttals to written comments, limited to issues raised in 
the case briefs and comments, may be filed not later than 37 days after 
the date of publication. Parties who submit arguments in this 
proceeding are requested to submit with the arguments: (1) a statement 
of the issues and (2) a brief summary of the arguments. The Department 
will publish the final results of the administrative review, including 
the results of its analysis of issues raised in any such written 
comments or at a hearing.
    Upon completion of this administrative review, the Department will 
issue appraisement instructions directly to the Customs Service.
    Furthermore, the following deposit requirements will be effective 
upon publication of the final results of administrative review for all 
shipments of HPMAs from Japan entered, or withdrawn from warehouse, for 
consumption on or after the publication date, as provided by section 
751(a)(1) of the Act: (1) the cash deposit rate for the reviewed 
company will be that established in the final results of this 
administrative review; (2) for manufacturers and exporters not covered 
in this review, but covered in a previous review or the original less-
than-fair-value (LTFV) investigation, 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 
previous review, or the original LTFV investigation, but the 
manufacturer is, the cash deposit rate will be that established for the 
most recent period for the manufacturer of the merchandise; and (4) the 
cash deposit rates for all other manufacturers or exporters will be 
33.4 percent, as explained below.
    On May 25, 1993, the Court of International Trade (CIT) in Floral 
Trade Council v. United States, 822 F. Supp. 766 (CIT 1993), and 
Federal Mogul Corporation v. United States, 822 F. Supp. 782 (CIT 
1993), decided that once an ``all others'' rate is established for a 
company it 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 original ``all others'' rate from 
the less-than-fair-value (LTFV) investigation (or that rate as amended 
for correction of clerical errors or as a result of litigation) in 
proceedings governed by antidumping duty orders for the purposes of 
establishing cash deposits in all current and future administrative 
reviews.

[[Page 20225]]

    In this case, the Department established two ``all others'' rates 
in the final determination of the LTFV investigation (47 FR 22134, May 
21, 1982). These rates were 25.4 percent for imports of TWT high power 
amplifiers and parts dedicated exclusively for use in TWT high power 
amplifiers and 41.4 percent for imports of Klystron high power 
amplifiers and amplifiers components not dedicated exclusively for use 
in TWT high power amplifiers. However, antidumping duty orders pertain 
to individual classes or kinds of merchandise (see, e.g., Antidumping 
Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical 
Plain Bearings, and Parts Thereof From Japan, 54 FR 20904 (May 
15,1989), and Antidumping Duty Orders: Heavy Forged Hand Tools, 
Finished or Unfinished, With or Without Handles From the People's 
Republic of China, 56 FR 6622 (February 19, 1991)) and the Department's 
practice is to calculate a single ``all others'' rate for each class or 
kind of merchandise. There is no indication that this proceeding covers 
two classes or kinds of merchandise. Accordingly, we have calculated a 
single average of these two rates, which is 33.4 percent, as the ``all 
others'' rate for imports of this merchandise in a manner consistent 
with the CIT's decisions.
    These requirements, when imposed, shall remain in effect until 
publication of the final results of the next administrative review.
    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 353.26 to file a certificate regarding the 
reimbursement of antidumping duties prior to liquidation of the 
relevant entries during this review period. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.

    Dated: April 26, 1996.
Susan G. Esserman
Assistant Secretary for Import Administration.
[FR Doc. 96-11127 Filed 5-3-96; 8:45 am]
BILLING CODE 3510-DS-P