[Federal Register Volume 69, Number 74 (Friday, April 16, 2004)]
[Notices]
[Pages 20594-20597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8694]


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

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-884]


Notice of Final Determination of Sales at Less Than Fair Value 
and Negative Final Determination of Critical Circumstances: Certain 
Color Television Receivers From the People's Republic of China

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

EFFECTIVE DATE: April 16, 2004.

FOR FURTHER INFORMATION CONTACT: Irina Itkin or Elizabeth Eastwood, 
Office of AD/CVD Enforcement, Office 2, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone: 
(202) 482-0656 or (202) 482-3874, respectively.

Final Determination

    We determine that certain color television receivers (CTVs) from 
the People's Republic of China (PRC) are being sold, or are likely to 
be sold, in the United States at less than fair value (LTFV), as 
provided in section 735 of the Tariff Act of 1930, as amended (the 
Act). The estimated margins of sales at LTFV are shown in the 
``Suspension of Liquidation'' section of this notice.

Case History

    The preliminary determination in this investigation was issued on 
November 21, 2003.  See Notice of Preliminary Determination of Sales at 
Less Than Fair Value, Postponement of Final Determination, and 
Affirmative Preliminary Determination of Critical Circumstances: 
Certain Color Television Receivers From the People's Republic of China 
FR 66800 (Nov. 28, 2003) (Preliminary Determination
    Since the preliminary determination, the following events have 
occurred. In December 2003 and January 2004, we conducted verification 
of the questionnaire responses of the four participating respondents in 
this case, Konka Group Company, Ltd. (Konka); Sichuan Changhong 
Electric Co., Ltd. (Changhong); TCL Holding Company Ltd. (TCL); and 
Xiamen Overseas Chinese Electornic Co., Ltd. (XOCECO).
    We gave interested parties an opportunity to comment on the 
preliminary determination. In February 2004, we received case and 
rebuttal briefs from the petitioners (Five Rivers Electronic 
Innovations, LLC, the International Brotherhood of Electrical Workers, 
and the Industrial Division of the Communications Workers of America), 
Changhong, Konka, TCL, and XOCECO. We also received case briefs from 
one additional PRC exporter of subject merchandise, Philips Consumer 
Electronics Co. of Suzhou Ltd. (Philips), three U.S. importers (i.e., 
Apex Digital, Inc. (Apex); Sears, Roebuck & Co. (Sears); and Wal-Mart 
Stores, Inc. (Wal-Mart)), and the China Chamber of Commerce for Imports 
and Exports of Machinery and Electronic Products (CCME). The Department 
held a public hearing on March 3, 2004, at the request of Changhong, 
Konka, and TCL.
    On February 23, 2004, Changhong requested that any antidumping 
order issued by the Department in this proceeding include scope 
language which states that varieties of CTVs that do not use a cathode 
ray tube are not included in the scope of this investigation. On April 
5, 2004, the petitioners filed comments objecting to Changhong's 
February 23 request. For further discussion, see the ``Scope Comments'' 
section of this notice, below.

Scope of the Investigation

    For purposes of this investigation, the term ``certain color 
television receivers'' includes complete and incomplete direct-view or 
projection-type cathode-ray tube color television receivers, with a 
video display diagonal exceeding 52 centimeters, whether or not 
combined with video recording or reproducing apparatus, which are 
capable of receiving a broadcast television signal and producing a 
video image. ``Incomplete'' CTVs are defined as unassembled CTVs with a 
color picture tube (i.e., cathode ray tube), printed circuit board or 
ceramic substrate, together with the requisite parts to comprise a 
complete CTV, when assembled. Specifically excluded from this 
investigation are computer monitors or other video display devices that 
are not capable of receiving a broadcast television signal.
    The color television receivers subject to this investigation are 
currently classifiable under subheadings 8528.12.2800, 8528.12.3250, 
8528.12.3290, 8528.12.4000, 8528.12.5600, 8528.12.3600, 8528.12.4400, 
8528.12.4800, and 8528.12.5200 of the Harmonized Tariff Schedule of the 
United States (HTSUS). Although the HTSUS subheading is provided for 
convenience and customs

[[Page 20595]]

purposes, the written description of the scope of the merchandise under 
investigation is dispositive, and parts or imports of assemblages of 
parts that comprise less than a complete CTV.

Scope Comments

    On February 13, 2004, the petitioners placed on the record 
information to clarify the definition of ``incomplete'' CTVs, as used 
in the petition. The petitioners note that ``incomplete'' CTVs are 
defined as unassembled CTVs with a color picture tube (i.e., cathode 
ray tube), printed circuit board or ceramic substrate, together with 
the requisite parts to comprise a complete CTV, when assembled. The 
petitioners also state that the scope language was not intended to 
cover parts or imports of assemblages of parts that comprise less than 
a complete CTV. See the petitioners' February 13 letter at page 2. The 
petitioners also note that the Court of International Trade (CIT) 
upheld this definition of ``incomplete'' CTVs in a separate antidumping 
proceeding on CTVs from the Republic of Korea. See Goldstar Co., Ltd. 
v. United States, 692 F. Supp. 1382, 1386-87 (CIT 1988).
    On February 23, 2004, Changhong requested that the scope language 
be adjusted to include language to specify that varieties of CTVs which 
do not use a cathode ray tube (e.g., plasma, LCD, DPL, and LCoS CTVs) 
are not included in the scope of this investigation. Changhong contends 
that these types of CTVs are not included because the petitioners' 
February 12 submission makes it clear that only CTVs with a cathode ray 
tube are covered by the scope of this investigation and, therefore, 
CTVs that do not include a cathode ray tube are not covered by the 
scope of this investigation.
    On April 5, 2004, the petitioners submitted comments opposing 
Changhong's request to change the scope language. The petitioners 
maintain that the scope language contained in the petition, and relied 
on in the preliminary determination, clearly states that this 
investigation covers only those CTVs which incorporate a cathode ray 
tube. Additionally, the petitioners contend that it would be 
inappropriate to name the types of products that might potentially be 
excluded (e.g., plasma, LCD, DPL, and LCoS), because these terms are 
imprecise. After considering Changhong's and the petitioners' comments, 
we find that the scope language contained in the petition clearly 
excludes CTVs that do not use a cathode ray tube and, therefore, have 
not revised the scope language for the final determination.

Period of Investigation

    The period of investigation is October 1, 2002, through March 31, 
2003, which corresponds to the two most recent fiscal quarters prior to 
the month of the filing of the petition (i.e., May 2003).

Nonmarket Economy Status for the PRC

    The Department has treated the PRC as a nonmarket economy (NME) 
country in all past antidumping investigations. See, e.g., Final 
Determination of Sales at Less Than Fair Value and Critical 
Circumstances: Certain Malleable Iron Pipe Fittings From the People's 
Republic of China, 68 FR 61395, 61396 (Oct. 28, 2003). A designation as 
a NME remains in effect until it is revoked by the Department. See 
section 771(18)(C) of the Act. No party in this investigation has 
requested a revocation of the PRC's NME status. Therefore, we have 
continued to treat the PRC as an NME in this investigation. For further 
details, see Preliminary Determination 68 FR at 66803.

Market Oriented Industry

    On July 15, 2003, Changhong requested that the Department make a 
determination that the CTV industry in the PRC is a market-oriented 
industry (MOI). After analyzing this claim, we notified Changhong that 
its claim must be made on behalf of the CTV industry as a whole, rather 
than on behalf of a specific exporter. Based on this guidance, in 
August and September 2003, Changhong, Konka, TCL, and XOCECO, as well 
as three additional PRC exporters of subject merchandise (i.e., Haier 
Electric Appliances International Co. (Haier), Philips, and Shenzhen 
Chaungwei-RGB Electronics Co., Ltd. (Skyworth)) submitted additional 
information to show that the CTVs industry in the PRC is market-
oriented. Again, we analyzed this claim and found that it did not 
sufficiently address the three prongs of the Department's MOI test. As 
a consequence, we notified the respondents in the preliminary 
determination that we were unable to conclude that the experiences of 
the firms making the claim are representative of the CTV industry in 
the PRC.
    In March 2003, XOCECO, Prima Technology, Inc., and the CCME 
submitted information purportedly delineating the ownership and 
production levels of the top ten television producers in the PRC.\1\ In 
February 2004, the CCME filed a case brief in which it argued that the 
information submitted by the respondents in this case demonstrates that 
each prong of the MOI test is met and the Department should find that 
the CTV industry in the PRC is market-oriented. We also received 
comments from the petitioners, who maintain that the Department should 
continue to find that the CTV industry is not an MOI.
---------------------------------------------------------------------------

    \1\ This data was originally filed on December 2, 2003, however, 
XOCECO did not include in this submission any certifications from 
the companies from whom this information was obtained, nor did it 
submit the majority of the reports on which it relied in making its 
arguments. As a result, the Department requested that XOCECO and the 
CCME resubmit this data, which they did on March 17, 2004.
---------------------------------------------------------------------------

    In order to consider an MOI claim, the Department requires 
information on each of the three prongs of the MOI test regarding the 
situation and experience of the PRC CTV industry as a whole. 
Specifically, the MOI test requires that: (1) There be virtually no 
government involvement in production or prices for the industry; (2) 
the industry is marked by private or collective ownership that behaves 
in a manner consistent with market considerations; and (3) producers 
pay market-determined prices for all major inputs, and for all but an 
insignificant proportion of minor inputs. Additionally, an MOI 
allegation must cover all (or virtually all) of the producers in the 
industry in question. See Notice of Preliminary Determination of Sales 
at Less Than Fair Value and Postponement of Final Determination: 
Synthetic Indigo From the People's Republic of China, 64 FR 69723, 
69725 (Dec. 14, 1999). See also Notice of Final Determination of Sales 
at Less Than Fair Value: Freshwater Crawfish Tail Meat From the 
People's Republic of China, 62 FR 41347, 41353 (Aug. 1, 1997). As a 
threshold matter, we note that the industry coverage of the 
respondents' claims remains uncertain and, in any case, inadequate. 
Moreover, even if respondents' MOI claim had been sufficient with 
respect to industry coverage, the data provided by the respondents 
strongly suggest that the CTV industry does not satisfy the second 
prong of the MOI test. Because the MOI allegation made in this case has 
not provided an adequate basis for considering the three factors of the 
Department's MOI test, we are unable to consider the MOI request. For a 
further discussion of this issue, see the Decision Memorandum at 
Comment 1.

Separate Rates

    In our preliminary determination, we found that Changhong, Konka, 
TCL, and XOCECO had met the criteria for receiving a separate 
antidumping rate. We have not received any information since the 
preliminary determination

[[Page 20596]]

which would warrant reconsideration of our separate-rate determination 
with respect to these companies. Therefore, we continue to find that 
each of these exporters should be assigned an individual dumping 
margin. For a complete discussion of the Department's determination 
that the respondents are entitled to separate rates, see Preliminary 
Determination at 68 FR 66804.

Margins for Cooperative Exporters Not Selected

    For our final determination, consistent with our preliminary 
determination, we have calculated a weighted-average margin for Haier, 
Hisense Import and Export Co., Ltd., Philips, Skyworth, Starlight 
International Holdings, Ltd., Star Light Electronics Co., Ltd., Star 
Fair Electronics Co., Ltd., Starlight Marketing Development Ltd., and 
SVA Group Co., Ltd. based on the rates calculated for those exporters 
that were selected to respond in this investigation, excluding any 
rates that are zero, de minimis or based entirely on adverse facts 
available. See Preliminary Determination, 68 FR at 66805. Companies 
receiving this rate are identified by name in the ``Continuation of 
Suspension of Liquidation'' section of this notice.

Surrogate Country

    For purposes of the final determination, we continue to find that 
India is the appropriate primary surrogate country for the PRC. For 
further discussion and analysis regarding the surrogate country 
selection for the PRC, see Preliminary Determination, 68 FR at 66807.

PRC-Wide Rate and Use of Facts Otherwise Available

    As explained in the Department's Preliminary Determination, there 
are numerous producers/exporters of the subject merchandise in the PRC. 
However, as noted in the preliminary determination, all exporters were 
given the opportunity to respond to the Department's questionnaire. 
Based upon our knowledge of the PRC and the fact that U.S. import 
statistics show that the responding companies did not account for all 
imports into the United States from the PRC, we have determined that 
certain PRC exporters of CTVs failed to respond to our questionnaire. 
For this reason, we determined that some PRC exporters of subject 
merchandise failed to cooperate in this investigation. In accordance 
with our standard practice, as adverse facts available, we are 
assigning as the PRC-wide rate the higher of: (1) The highest margin 
listed in the notice of initiation; or (2) the margin calculated for 
any respondent in this investigation. See, e.g., Final Determination of 
Sales at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon 
Quality Steel Products From The People's Republic of China, 65 FR 34660 
(May 31, 2000), and accompanying Decision Memorandum at Comment 1. For 
purposes of the final determination of this investigation, we are using 
the margin stated in the notice of initiation (i.e., 78.45 percent) as 
adverse facts available because it is higher than the margin we 
calculated for Changhong, Konka, TCL, or XOCECO. In the preliminary 
determination we examined the price and cost information provided in 
the petition to corroborate this margin. See the Preliminary 
Determination at 68 FR 66806.

Analysis of Comments Received

    All issues raised in the case briefs by parties to this proceeding 
and to which we have responded are listed in the Appendix to this 
notice and addressed in the Decision Memorandum, which is adopted by 
this notice. Parties can find a complete discussion of all issues 
raised in this investigation and the corresponding recommendations in 
this public memorandum, which is on file in the Central Records Unit, 
room B-099, of the main Department building. In addition, a complete 
version of the Decision Memorandum can be accessed directly on the Web 
at http://ia.ita.doc.gov. The paper copy and electronic version of the 
Decision Memorandum are identical in content.

Changes Since the Preliminary Determination

    Based on our analysis of comments received, we have made certain 
changes to the margin calculations. For a discussion of these changes, 
see the ``Margin Calculations'' section of the Decision Memorandum.

Critical Circumstances

    In our preliminary determination, we found that critical 
circumstances existed for all mandatory respondents, companies subject 
to the ``all others'' rate, and companies subject to the PRC-wide rate.
    After the preliminary determination, each of the mandatory 
respondents provided additional information regarding their shipments. 
In addition, Philips, which submitted a voluntary response, reported 
its shipments for the period January 2001 through September 2003. We 
received comments on this data from three of the four mandatory 
respondents (i.e., Changhong, Konka, and TCL), Philips, and three 
importers of CTVs (i.e., Apex, Sears, and Wal-Mart). These companies 
argued that we should no longer find that critical circumstances exist, 
based on one or more of the following arguments: (1) The Department now 
has more data on which to base its analysis; (2) the Department should 
disregard shipments made under pre-petition contracts; (3) the 
Department should adjust Changhong's shipment data to account for 
delays due to the severe acute respiratory syndrome (SARS) epidemic; 
(4) imports of CTVs are heavily seasonal; (5) there is insufficient 
data on the record to perform a seasonality analysis for certain 
companies; and (6) there is no evidence that importers had knowledge 
that PRC companies were dumping. We also received comments from the 
petitioners, who support the preliminary finding of critical 
circumstances for all parties.
    Based on new information on the record of this investigation and 
information contained in our preliminary affirmative critical 
circumstances determinations, we have revised our determination and 
find that for purposes of the final determination, critical 
circumstances do not exist with regard to imports of CTVs from the PRC. 
For further details, see the Decision Memorandum at Comment 3; see also 
the April 12, 2004, memorandum from the Team to Louis Apple entitled, 
``Antidumping Duty Investigation of Certain Color Television Receivers 
(CTVs) from the People's Republic of China (PRC)--Final Negative 
Determination of Critical Circumstances.''

Verification

    As provided in section 782(i) of the Act, we verified the 
information submitted by the respondents for use in our final 
determination. We used standard verification procedures including 
examination of relevant accounting and production records, and original 
source documents provided by the respondents.

Continuation of Suspension of Liquidation

    Pursuant to section 735(c)(1)(B) of the Act, we will instruct 
Customs and Border Protection (CBP) to continue to suspend liquidation 
of all imports of subject merchandise from the PRC entered, or 
withdrawn from warehouse, for consumption on or after November 28, 
2003, the date of publication of our preliminary determination. 
However, because we find that critical circumstances do not exist with 
regard to imports of CTVs from the PRC, we

[[Page 20597]]

will instruct the CBP to terminate the retroactive suspension of 
liquidation, between August 30, 2003, (90 days prior to the date of 
publication of the preliminary determination) and November 28, 2003, 
which was instituted due to the preliminary affirmative critical 
circumstances finding. The CBP shall also release any bond or other 
security, and refund any cash deposit required, under section 
733(d)(1)(B) of the Act with respect to entries of the merchandise the 
liquidation of which was suspended retroactively under section 
733(e)(2) of the Act. For entries on or after November 28, 2003, the 
CBP shall continue to require a cash deposit or the posting of a bond 
equal to the estimated amount by which the normal value exceeds the 
U.S. price as shown below. These instructions suspending liquidation 
will remain in effect until further notice.
    The dumping margins are provided below:

------------------------------------------------------------------------
                                                              Weighted-
                                                               average
                   Manufacturer/exporter                     margin  (in
                                                               percent)
------------------------------------------------------------------------
Haier Electric Appliances International Co.................        21.49
Hisense Import and Export Co., Ltd.........................        21.49
Konka Group Company, Ltd...................................        11.36
Philips Consumer Electronics Co. of Suzhou Ltd.............        21.49
Shenzhen Chaungwei-RGB Electronics Co., Ltd................        21.49
Sichuan Changhong Electric Co., Ltd........................        24.48
Starlight International Holdings, Ltd......................        21.49
Star Light Electronics Co., Ltd............................        21.49
Star Fair Electronics Co., Ltd.............................        21.49
Starlight Marketing Development Ltd........................        21.49
SVA Group Co., Ltd.........................................        21.49
TCL Holding Company Ltd....................................        22.36
Xiamen Overseas Chinese Electronic Co., Ltd................         4.35
PRC-wide...................................................        78.45
------------------------------------------------------------------------

    The PRC-wide rate applies to all entries of the subject merchandise 
except for entries from exporters/producers that are identified 
individually above.

Disclosure

    We will disclose the calculations performed within five days of the 
date of publication of this notice to parties in this proceeding in 
accordance with 19 CFR 351.224(b).

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (ITC) of our determination. As our final 
determination is affirmative, the ITC will, within 45 days, determine 
whether these imports are materially injuring, or threaten material 
injury to, the U.S. industry. If the ITC determines that material 
injury or threat of material injury does not exist, the proceeding will 
be terminated and all securities posted will be refunded or canceled. 
If the ITC determines that such injury does exist, the Department will 
issue an antidumping duty order directing the CBP to assess antidumping 
duties on all imports of the subject merchandise entered, or withdrawn 
from warehouse, for consumption on or after the effective date of the 
suspension of liquidation.

Notification Regarding APO

    This notice also serves as a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305. Timely notification of 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 determination is issued and published pursuant to sections 
735(d) and 777(i)(1) of the Act.

    Dated: April 12, 2004.
Jeffrey A. May,
Acting Assistant Secretary for Import Administration.

Appendix--Issues in the Decision Memorandum

Comments

General Issues

1. Market-Oriented Industry (MOI) Claim
2. Respondent Selection
3. Critical Circumstances
4. Updating the PRC Labor Rate
5. Indian Imports of Small Quantities
6. Surrogate Value for Electricity
7. Market Economy Purchases from Indonesia, Korea, and Thailand
8. Market-Economy Purchases from Hong Kong Trading Companies
9. Surrogate Value Data Obtained from www.infodriveindia.com
10. Using Market-Economy Purchases Made by one PRC Respondent to 
Value the Factors of Production for Other PRC Respondents
11. Surrogate Value for 25-inch Curved CPTs
12. Surrogate Value for 29-inch CPTs
13. Surrogate Value for Speakers
14. Selection of the Appropriate Surrogate Financial Statements
15. Adjustments to the Surrogate Financial Ratios to Account for 
Freight, Price Adjustments, Non-Applicable Selling Expenses, 
Packing, and Taxes
16. Adjustments to the Surrogate Factory Overhead Ratios
17. Additional Adjustments to the Surrogate Financial Ratios for 
BPL, Onida Saka, and Videocon
18. Additional Adjustments to the Surrogate Financial Ratios for 
Calcom, Kalyani and Matsushita
19. Additional Adjustment to the Surrogate Financial Ratios to 
Account for Selling, General, and Administrative (SG&A) Labor
20. Treatment of Finished Goods in the Surrogate Financial Ratio 
Calculations
21. Weighted- vs. Simple-Average Surrogate Financial Ratios
22. Clerical Errors in the Preliminary Determination
23. Corrections Arising from Verification

Company-Specific Issues

24. New Factual Information in Changhong's Surrogate Value 
Submission
25. Changhong Market-Economy Purchases
26. Date of Sale for Konka
27. TCL's Unreported U.S. Sales
28. TCL's Brokerage and Handling Expenses
29. Surrogate Value for TCL's Magnetic Circle Inductors
30. Surrogate Value for TCL's Aluminum and Iron Heat Sinks and 
Heating Plates
31. Distance from TCL's Factory to TCL Hong Kong
32. TCL's Energy Consumption
33. Use of TCL's ``Actual'' SG&A Rate
34. Use of Total Adverse Facts Available for XOCECO
35. Screen Type Code for XOCECO
36. XOCECO's U.S. Warranty Expenses
37. XOCECO's U.S. Warehousing and Other Transportation Expenses
38. XOCECO's Supplier Distances and Supplier Modes of Transportation
39. Reclassification of Certain of XOCECO's Components as 
``Miscellaneous''
40. XOCECO's Packed Weights
41. Offset for Sales of Tin Scrap Generated During XOCECO's 
Production Process
42. Labor Hours for XOCECO's Printed Circuit Board (PCB) Factory
43. XOCECO's Projection Factory Weights
44. XOCECO's Electricity Consumption

[FR Doc. 04-8694 Filed 4-15-04; 8:45 am]
BILLING CODE 3510-DS-P