[Federal Register Volume 61, Number 129 (Wednesday, July 3, 1996)] [Notices] [Pages 34794-34798] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-17015] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE [C-549-802] Ball Bearings and Parts Thereof From Thailand; Preliminary Results of Countervailing Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. ACTION: Notice of preliminary results of countervailing duty administrative review. ----------------------------------------------------------------------- SUMMARY: The countervailing duty order on Ball Bearings and Parts Thereof from Thailand was revoked effective January 1, 1995, as a result of a changed circumstances review and pursuant to section 782(h)(2) of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (60 FR 40568). The Department is conducting an administrative review of this order to determine the appropriate assessment rate for entries made during the last review period prior to the revocation of the order (January 1, 1994, through December 31, 1994). For information on the net subsidy for reviewed companies and non-reviewed companies, please see the Preliminary Results of Review section of this notice. If the final results remain the same as these preliminary results of administrative review, we will instruct the U.S. Customs Service to assess countervailing duties as detailed in the Preliminary Results of Review section of this notice. Interested parties are invited to comment on these preliminary results. Because this order has been revoked, the Department will not issue further instructions with respect to cash deposits of estimated countervailing duties. EFFECTIVE DATE: July 3, 1996. FOR FURTHER INFORMATION CONTACT: Robert Copyak or Kelly Parkhill, Office of Countervailing Compliance, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 482-2209 and (202) 482-4126, respectively. SUPPLEMENTARY INFORMATION: Background On May 3, 1989, the Department published in the Federal Register (54 FR 19130) the countervailing duty order on Ball Bearings and Parts Thereof from Thailand. On May 10, 1995, the Department published a notice of ``Opportunity to Request an Administrative Review'' (60 FR 24831) of this countervailing duty order. We received a timely request for review, and we initiated the review, covering the period January 1 through December 31, 1994, on June 15, 1995 (60 FR 31447). In accordance with section 355.22(a) of the Department's Interim Regulations, this review covers only those producers or exporters of the subject merchandise for which a review was specifically requested (see Antidumping and Countervailing Duties: Interim Regulations; Request for Comments, 60 FR 25130 (May 11, 1995)) (Interim Regulations). This review was requested for the Minebea Group of Companies in Thailand, NMB Thai, Pelmec, and NMB Hi-Tech, which manufacture and export the subject merchandise. During this review, the Department learned of another Minebea company, NMB Precision Ball, Ltd., which manufactures balls. The company does not export to the United States but it does sell balls to the other three companies which in turn export finished ball bearings to the United States and elsewhere. This company, like the other three Minebea producers in Thailand, is a wholly-owned subsidiary of Minebea Japan, and because NMB Precision Ball, Ltd. received export subsidies during the period of review (see, ``Programs Conferring Subsidies'' section below) for its sales of balls to the related Thai ball bearing producers, we preliminarily determine that it is appropriate to include the subsidies to NMB Precision Ball, Ltd. in our calculations of the net subsidy. On November 2, 1995, we extended the period for completion of the preliminary and final results pursuant to section 751(a)(3) of the Act (see Extension of the Time Limit for Certain Countervailing Duty Administrative Reviews, 60 FR 55699). As explained in the memoranda from the Assistant Secretary for Import Administration dated November 22, 1995, and January 11, 1996 (on file in the public file of the Central Records Unit, Room B-099 of the Department of Commerce), all deadlines were further extended to take into account the partial shutdowns of the Federal Government from November 15 through November 21, 1995, and December 15, 1995, through January 6, 1996. As a result of these extensions, the deadline for these preliminary results is no later than June 27, 1996, and the deadline for the final results of this [[Page 34795]] review is no later than 180 days from the date on which these preliminary results are published in the Federal Register. Applicable Statute and Regulations Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (URAA) effective January 1, 1995 (the Act). The Department is conducting this administrative review in accordance with section 751(a) of the Act. Calculation Methodology In the first administrative review, respondents claimed that the F.O.B. value of the subject merchandise entering the United States is greater than the F.O.B. price charged by the companies in Thailand (57 FR 26646 (June 15, 1992)). They explained that this discrepancy is due to a mark-up charged by the parent company, located in a third country, through which the merchandise is invoiced. However, the subject merchandise is shipped directly from Thailand to the United States and is not transshipped, combined with other merchandise, or repackaged with other merchandise. In other words, for each shipment of subject merchandise, there are two invoices and two corresponding F.O.B. export prices: (1) The F.O.B. export price at which the subject merchandise leaves Thailand, and on which subsidies from the Royal Thai Government (RTG) are earned by the companies, and upon which the subsidy rate is calculated; and (2) the F.O.B. export price which includes the parent company mark-up, and which is listed on the invoice accompanying the subject merchandise as it enters the United States, and upon which the cash deposits are collected and the countervailing duty is assessed. In prior reviews, we verified on a transaction-specific basis the direct correlation between the invoice which reflects the F.O.B. price on which the subsidies are earned and the invoice which reflects the marked-up price that accompanies each shipment as it enters the United States. Respondents argued that the calculated ad valorem rate should be adjusted by the ratio of the export value from Thailand to the export value charged by the parent company to the U.S. customer so that the amount of countervailing duties collected would reflect the amount of subsidies bestowed. The Department agreed and made this adjustment in prior administrative reviews (57 FR 26646, (June 15, 1992); and 58 FR 36392 (July 7, 1993)). Since the mark-up is not part of the export value upon which the respondents earn subsidies, the Department has followed the methodology adopted in prior administrative reviews, and calculated the ad valorem rate as a percentage of the original export value from Thailand and then multiplied this rate by the adjustment ratio--the original export value from Thailand divided by the marked-up value of the goods entering the United States. NMB Thai, Pelmec, NMB Hi-Tech, and NMB Precision Ball, Ltd. are wholly-owned by one parent company, and are therefore affiliated companies within the meaning of section 771(33) of the Act. See Final Affirmative Countervailing Duty Determination: Certain Pasta (``Pasta'') from Italy, 60 FR 30288, 30290 (June 14, 1996). Furthermore, all four sister companies produce the subject merchandise. As a result, these four companies warrant treatment as a single company with a combined rate. This is consistent with our approach in the investigation and all prior reviews of this order. See Ball Bearings and Parts Thereof from Thailand; Preliminary Results of Countervailing Duty Administrative Review, 60 FR 22563 (May 8, 1995); see also Ball Bearings and Parts Thereof from Thailand; Preliminary Results of Countervailing Duty Administrative Review, 60 FR 42532 (August 16, 1995). To avoid double counting, the sales value was adjusted to account for intercompany sales of subject merchandise. We calculated the countervailing duty rate by first totaling the benefits received by the four companies for each program used. Dividing these sums by the total Thai export value for the four companies, we calculated the unadjusted subsidy rate for each program used. As described above, we adjusted these rates by multiplying them by the ratio of the original export price from Thailand to the marked-up price of the goods entering the United States. Finally, we summed the adjusted subsidy rate for each program, to arrive at the total countervailing duty rate. Scope of the Review Imports covered by this review are ball bearings and parts thereof. Such merchandise is described in detail in the Appendix to this notice. The Harmonized Tariff Schedule (HTS) item numbers listed in the Appendix are provided for convenience and Customs purposes. The written description remains dispositive. Verification As provided in section 782(i) of the Act, we verified information submitted by the Royal Thai Government and the Minebea Group of companies. We followed standard verification procedures, including meeting with government and company officials and examination of relevant accounting and financial records and other original source documents. Our verification results are outlined in the public versions of the verification reports, which are on file in the Central Records Unit (Room B-099 of the Main Commerce Building). Analysis of Programs I. Program Conferring Subsidies Investment Promotion Act of 1977--Sections 28, 31, 36(1), and 36(4) The Investment Promotion Act of 1977 (IPA) is administered by the Board of Investment (BOI) and is designed to provide incentives to invest in Thailand. In order to receive IPA benefits, each company must apply to the BOI for a Certificate of Promotion (license), which specifies goods to be produced, production and export requirements, and benefits approved. These licenses are granted at the discretion of the BOI and are periodically amended or reissued to change benefits or requirements. Each IPA benefit for which a company is eligible must be specifically stated in the license. We have previously determined that the BOI licenses of Pelmec, NMB Thai, and NMB Hi-Tech constitute export subsidies (58 FR 36392, July 7, 1993 and 60 FR 52374, October 6, 1995). No new information or evidence of changed circumstances has been provided to warrant reconsideration of this finding. NMB Precision Ball, Ltd. held one license during the period of review, and this license was tied to export performance and is, therefore, countervailable like the others. In past reviews, the Minebea Group received benefits under sections 28, 31, and 36(1) of the IPA. In this review, they received benefits under these sections, as well as under section 36(4). Section 28: Prior to the review period, IPA Section 28 allowed companies to import machinery free of import duties, the business tax and the local tax. However, effective January 1, 1992, the RTG eliminated both the business and the local tax and instituted a value added tax (VAT) system. According to Section 21(4) of the VAT Act, if Section 28 benefits were granted by BOI to a company before January 1, [[Page 34796]] 1992, that company, when importing fixed assets under Section 28, would continue to be subject to the business tax provisions under Chapter IV, Title II, of the Revenue Code before being amended by the VAT Act. In accordance with Section 21(4), the company would be required to pay the business and local taxes only if its BOI license requirements were violated. Section 21(4) of the VAT Act applies to Pelmec, NMB Thai, NMB Hi-Tech, and NMB Precision Ball, Ltd. because all of their licenses were granted before January 1, 1992, and contain Section 28 benefits. The respondents have argued that given the provisions of the VAT Act and, specifically Section 21(4), their exemption from the business and local taxes no longer constitutes a benefit to the companies because: (1) no other companies are required to pay the business and local taxes; and (2) under Section 21(4), payment of the business and local taxes serves only as a penalty for noncompliance with BOI license requirements. We verified that under the new VAT law, companies are no longer required to pay business and local taxes with the exception of the noncompliance penalty noted above. For these reasons, we preliminarily determine that the business and local tax exemptions under Section 28 no longer constitute a countervailable benefit for companies subject to Section 21(4) of the VAT Act. However, under provisions of Section 21(4) of the VAT Act, companies that were granted Section 28 benefits under the IPA before January 1, 1992, are not required to pay VAT on imports of fixed assets. The respondents have argued that this exemption from VAT on imports of fixed assets did not constitute a benefit to the companies because all companies, promoted and non-promoted alike, are effectively exempted from VAT on their imports of fixed assets. According to the Section 82 of the VAT Act, the VAT liability is computed by subtracting the ``input tax'' (the VAT paid) from the ``output tax'' (the VAT collected). Consequently, companies that pay VAT on imports of fixed assets are effectively exempted from this VAT payment as they receive a credit for the VAT they paid on purchases of inputs, including imports of fixed assets, when their monthly VAT liability is computed. We examined this issue through questionnaires and at verification. We confirmed that under the VAT system, companies receive credit for the VAT paid on the purchases of inputs and, as a result, no VAT is effectively paid by companies on these purchases. Since VAT liability is computed on a monthly basis, any possible time-value-of-money benefit under Section 21(4) of the VAT Act in the review would be insignificant. On this basis, we preliminarily determine that the exemption of the VAT on imports of fixed assets under Section 21(4) of the VAT Act does not constitute a countervailable benefit to the companies specified in Section 21(4). Since the business and local tax exemptions under Section 28 of the IPA and the VAT exemption under Section 21(4) of the VAT Act do not confer countervailable benefits to companies subject to Section 21(4) of the VAT Act, we preliminarily determine that only the exemptions of import duties on fixed assets under Section 28 of IPA continue to provide countervailable benefits to the respondent companies. Section 31: IPA Section 31 allows companies an exemption from payment of corporate income tax on profits derived from promoted exports. The corporate income tax rate in Thailand is 30 percent. NMB Thai and NMB Hi-Tech claimed an income tax exemption under Section 31 on the income tax returns filed during the review period. The income tax exemption continues to provide countervailable benefits to the respondent companies. Section 36(1): IPA Section 36(1) allows companies to import raw and ``essential'' materials free of import duties. As Pelmec, NMB Thai, NMB Hi-Tech and Precision Ball Ltd. have bonded warehouses for the purchase of raw materials, they have only claimed Section 36(1) duty exemptions on their imports of essential materials. Respondents' questionnaire response included a range of items that were categorized by the BOI as essential materials (e.g., grinding wheels, blades, lubricating cleaning solutions, gloves, and packing materials) for which they received duty exemptions. Energy and fuel were not included as they are not eligible for section 36(1) duty exemption. Prior to the Uruguay Round Agreement, only duty exemptions on inputs that were physically incorporated into the product being exported (e.g., raw material inputs and packing materials) were considered non-countervailable. Under the Agreement on Subsidies and Countervailing Measures (the Agreement), this has been broadened to include duty exemptions on products that are ``consumed in production.'' Respondents claim that the essential materials for which BOI grants duty exemptions meet the ``consumed in production'' standard, and, therefore, any duty exemptions on these materials should be found not countervailable. However, Annex II of the Agreement contains a footnote (fn 61) which defines inputs consumed in the production process as: ``[i]nputs consumed in the production process are inputs physically incorporated, energy, fuels and oils used in the production process and catalysts which are consumed in the course of their use to obtain the exported product.'' At verification, we requested respondents to break out the ``essential materials'' according to the definition in the Annex II footnote, and provide that break-out in a supplemental response. Their break-out continued to include a number of BOI essential materials that fall outside the definition in footnote 61. Respondents argue that the term ``consumed in production'' should include all items that are worn out during the production process and that physically touch the product (e.g., grinding wheels, drill bits, lubricating cleaning solutions) as well as items such as packing materials. However, it is the Department's position that the definition in Annex II is clear, and therefore, the only duty exemptions that we find not countervailable are those on oils, lubricating cleaning solutions, packing materials, and materials which are physically incorporated into the exported product. The remaining duty exemptions, received by the respondent companies, continue to be countervailable. Because energy and fuels were not eligible for Section 36(1) duty exemptions, we have not addressed whether duty exemptions on those products would be countervailable under the URAA. Section 36(4): While the Minebea Group had not, prior to the period of review, claimed any benefits under Section 36(4) of the IPA, its BOI licenses, discussed in greater detail above, always included eligibility to claim them. Thus, the general discussion of the IPA above applies to Section 36(4) as well. In this review period, NMB Hi- Tech claimed benefits under Section 36(4) of the IPA for the first time. Under Section 36(4) of the IPA, promoted persons can deduct from their assessable income for payment of income tax an amount equal to five percent of the increased income over the previous year, derived from the export of products produced by the promoted persons. This benefit is calculated across the first ten years of a license, and it can be used as a loss carried forward in any year the promoted person wishes to use it, either during or after the promoted period. As Section 36(4) is conditioned upon exports, we preliminarily find this program to be countervailable. [[Page 34797]] Calculation of Benefit from IPA Sections 28, 31, 36(1) and 36(4) To calculate the benefit from Sections 31, 28, and 36(1), of the IPA, we followed the same methodology that has been used in past administrative reviews (see, e.g., 58 FR 16174, March 25, 1993; 57 FR 9413, March 18, 1992). For Section 31, we calculated the benefit by calculating the difference between what each company paid in corporate income tax during the review period and what it would have paid absent the exemption. We did this by multiplying the corporate income tax rate in effect during the review period by the amount of each company's income that was exempted from income tax. For Sections 28 and 36(1), we calculated the benefit by obtaining the amount of import duties that would have been paid on the imports absent the exemption. Prior to this review, none of the Minebea group had ever claimed benefits under Section 36(4). During the period of review, NMB Hi-Tech claimed benefits under Section 36(4) for the first time. We calculated the Section 36(4) benefit by determining the amount of tax which would have been paid absent this deduction. We then added all duty and tax savings under all the IPA programs and divided this aggregate benefit by the total export value of the subject merchandise. We then made the adjustment for the parent company mark-up discussed in the ``Calculation Methodology'' section above. On this basis, we preliminarily determine the countervailing duty rate from IPA Sections 31, 28, 36(1), and 36(4) to be 5.25 percent ad valorem during the review period. II. Programs Preliminarily Determined to be Not Used We examined the following programs and preliminarily determine that the producers and/or exporters of the subject merchandise did not apply for or receive benefits under these programs during the period of review: A. Tax Certificates for Exporters B. Electricity Discounts for Exporters C. Export Packing Credits D. Rediscount of Industrial Bills E. IPA Section 33 F. Export Processing Zones G. Reduced Business Taxes for Producers of Intermediate Goods for Export Industries H. International Trade Promotion Fund Preliminary Results of Review In accordance with section 355.22(c)(4)(ii) of the Department's Interim Regulations, we calculated an individual subsidy rate for each producer/exporter subject to this administrative review. As stated in the Calculation Methodology section above, since the Minebea companies are affiliated, we are treating them as one company, and calculating one countervailing duty rate for the group. Thus, for the period January 1, 1994, through December 31, 1994, we preliminarily determine the net subsidy for NMB Thai, Pelmec, NMB Hi-Tech, and NMB Precision Ball, Ltd. to be 5.25 percent ad valorem. If the final results of this review remain the same as these preliminary results, the Department intends to instruct the U.S. Customs Service to assess countervailing duties as indicated above. As stated in the``Summary'' section above, the Department revoked this countervailing duty order, effective January 1, 1995, pursuant to section 782(h)(2) of the Act. Ball Bearings and Parts Thereof from Thailand; Final results of Changed Circumstances Countervailing Duty Review and Revocation of Countervailing Duty Order, 61 FR 20799 (May 8, 1996). Accordingly, suspension of liquidation was terminated effective January 1, 1995; thus, the Department will not issue further instructions with respect to cash deposits of estimated countervailing duties. The URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies. The procedures for countervailing duty cases are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. Requests for administrative reviews must now specify the companies to be reviewed. See section 355.22(a) of the Interim Regulations. The requested review will normally cover only those companies specifically named. Pursuant to 19 C.F.R. Sec. 355.22(g), for all companies for which a review was not requested, duties must be assessed at the cash deposit rate previously ordered. Accordingly, for the period January 1 through December 31, 1994, the assessment rates applicable to all non-reviewed companies covered by this order are the cash deposit rates in effect at the time of entry. Public Comment Parties to the proceeding may request disclosure of the calculation methodology and interested parties may request a hearing not later than 10 days after the date of publication of this notice. Interested parties may submit written arguments in case briefs on these preliminary results within 30 days of the date of publication. Rebuttal briefs, limited to arguments raised in case briefs, may be submitted seven days after the time limit for filing the case brief. Parties who submit argument in this proceeding are requested to submit with the argument: (1) a statement of the issue; and, (2) a brief summary of the argument. Any hearing, if requested, will be held seven days after the scheduled date for submission of rebuttal briefs. Copies of case briefs and rebuttal briefs must be served on interested parties in accordance with 19 C.F.R. Sec. 355.38. Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 C.F.R. Sec. 355.38, are due. The Department will publish the final results of this administrative review including the results of its analysis of issues raised in any case or rebuttal brief or at a hearing. This administrative review and notice are in accordance with section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)). Dated: June 27, 1996. Robert S. LaRussa, Acting Assistant Secretary for Import Administration. Appendix Scope of Review Ball Bearings, Mounted or Unmounted, and Parts Thereof The products covered by this review, ball bearings, mounted or unmounted, and parts thereof, include all antifriction bearings which employ balls as the rolling element. During the review period, imports of these products were classifiable under the following categories: antifriction balls; ball bearings with integral shafts; ball bearings (including radial ball bearings) and parts thereof; ball bearing type pillow blocks and parts thereof; ball bearing type flange, take-up, cartridge, and hanger units, and parts thereof; and other bearings (except tapered roller bearings) and parts thereof. Wheel hub units which employ balls as the rolling element are subject to the review. Finished but unground or semiground balls are not included in the scope of this review. Imports of these products are currently classifiable under the [[Page 34798]] following HTS item numbers: 8482.10.10, 8482.10.50, 8482.80.00, 8482.91.00, 8482.99.10, 8482.99.70, 8483.20.40, 8483.20.80, 8483.30.40, 8483.30.80, 8483.90.20, 8483.90.30, 8483.90.70, 8708.50.50, 8708.60.50, 8708.99.50. This review covers all of the subject bearings and parts thereof outlined above with certain limitations. With regard to finished parts (inner race, outer race, cage, rollers, balls, seals, shields, etc.), all such parts are included in the scope of this review. For unfinished parts (inner race, outer race, rollers, balls, etc.), such parts are included if (1) they have been heat treated, or (2) heat treatment is not required to be performed on the part. Thus, the only unfinished parts that are not covered by this review are those parts which will be subject to heat treatment after importation. [FR Doc. 96-17015 Filed 7-2-96; 8:45 am] BILLING CODE 3510-DS-P