[Federal Register: March 15, 2002 (Volume 67, Number 51)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF COMMERCE
International Trade Administration
Notice of Amended Final Determination of Sales at Less Than Fair Value: Certain Automotive Replacement Glass Windshields from the People's Republic of China
AGENCY: Import Administration, International Trade Administration, Department of Commerce.
ACTION: Amended Final Determination of Sales at Less Than Fair Value.
EFFECTIVE DATE: March 15, 2002.
FOR FURTHER INFORMATION CONTACT: Stephen Bailey, Brandon Farlander, and Robert Bolling, AD/CVD Enforcement Group III, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230; telephone: (202) 482-1102, (202) 482-0182, and (202) 482-3434, respectively.
The Applicable Statute and Regulations
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (``the Act''), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (``URAA''). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 C.F.R. Part 351 (2001).
Amendment of Final Determination
On February 4, 2002, the Department of Commerce (``the Department'') issued its final determination and found that ARG windshields from the People's Republic of China (``PRC'') are being, or are likely to be, sold in the United States at less than fair value (``LTFV''), as provided in section 735(a) of the Tariff Act. See Final Determination of Sales at Less Than Fair Value: Certain Automotive Replacement Glass Windshields from the People's Republic of China, 67 FR 6482 (February 12, 2002) (Final Determination).
On February 14, 2002, respondents Fuyao Glass Industry Group Company, Ltd. (``FYG'') and Xinyi Automotive Glass (Shenzhen) Co., Ltd. (``Xinyi''), and Petitioners timely filedministerial error allegations, pursuant to 19 CFR 351.224(c)(2). On February 19, 2002, respondent FYG and Petitioners timely filedrebuttal comments on the alleged ministerial errors.
The Department is amending the Final Determination in the antidumping investigation of ARG windshields from the PRC for FYG, Xinyi, Shenzhen Benxun Auto-Glass Co., Ltd. (``Benxun''), Changchun Pilkington Safety Glass Co., Ltd. (``Changchun''), Guilin Pilkington Safety Glass Co., Ltd. (``Guilin''), Wuhan Yaohua Pilkington Safety Glass Co., Ltd. (``Wuhan''), and TCG International (``TCGI'').
Scope of the Investigation
As addressed in the final determination, interested parties requested that the Department clarify whether automotive replacement glass windshields (``ARG'') windshields for buses, farm and heavy machinery are included in the scope of this investigation. Based on the information received, we clarified that ARG windshields for buses, farm and heavy machinery are included in the scope of this investigation. For further discussion, please see the Issues and Decision Memorandum for the Scope Clarification for the Antidumping Duty Investigation of Automotive Replacement Glass Windshields from the People's Republic of China: July 1, 2000 through December 31, 2001 from Edward C. Yang, Director, Office 9 to Joseph A. Spetrini, Deputy Assistant Secretary, AD/CVD Enforcement Group III, dated January 24, 2002.
The products covered by this investigation are ARG windshields, and parts thereof, whether clear or tinted, whether coated or not, and whether or not they include antennas, ceramics, mirror buttons or VIN notches, and whether or not they are encapsulated. ARG windshields are laminated safety glass (i.e., two layers of (typically float) glass with a sheet of clear or tinted plastic in between (usually polyvinyl butyral)), which are produced and sold for use by automotive glass installation shops to replace windshields in automotive vehicles (e.g., passenger cars, light trucks, vans, sport utility vehicles, etc.) that are cracked, broken or otherwise damaged.
ARG windshields subject to this investigation are currently classifiable under subheading 7007.21.10.10 of the Harmonized Tariff Schedules of the United States (HTSUS). Specifically excluded from the scope of this investigation are laminated automotive windshields sold for use in original assembly of vehicles. While HTSUS subheadings are provided for convenience and Customs purposes, our written description of the scope of this investigation is dispositive.
A ministerial error is defined in section 351.224(f) of our regulations as
``an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.'' Section 351.224(e) of our regulations provides that we ``will analyze any comments received and, if appropriate . . . correct any ministerial error by amending the final determination. . . .'' After reviewing interested parties' allegations we have determined, in accordance with 19 CFR 351.224, that the Final Determination includes ministerial errors discussed below.
FYG's Allegation of Ministerial Errors
Updated Market Economy Prices
Comment 1: FYG alleges that the Department made a ministerial error by using outdated market price values for ink, silver and mirror buttons and using a surrogate value for solder even though FYG reported market economy purchases of solder. FYG maintains that the Department failed to apply the updated market economy values for these inputs, as reported in FYG's November 16, 2001 submission.
Petitioners did not provide rebuttal comments.
Department's Position: We agree with FYG. Following the Preliminary Determination, FYG provided updated market economy values to the Department which the Department inadvertently failed to use for the Final Determination. It is the Department's practice to use the most updated factor value information available. For the amended final determination, we used updated market economy prices for the inputs ink, silver, mirror buttons and solder. See Analysis Memo for the Amended Final Determination of Automotive Replacement Glass (``ARG'') Windshields from the People's Republic of China: Xinyi Automobile Glass (Shenzhen) Co., Ltd. (``Xinyi'') and Fuyao Glass Industry Group Co., Ltd. (``FYG'') (Amended Final Analysis Memo) from Brandon Farlander and Stephen Bailey to Robert Bolling dated March 6, 2002.
Xinyi's Allegations of Ministerial Errors
Incorrect Margin Calculation Results
Comment 2: Xinyi argues that it calculated a margin using all relevant documents provided by the Department issued for the Final Determination and that the margin Xinyi calculated is fifty-five one- hundredths of a percent lower than the margin calculation generated by the Department. Xinyi argues that the final margin should be 3.15 percent as compared to 3.70 percent as calculated by the Department in its Final Determination.
Petitioners argue that Xinyi's ministerial error submission does not fulfill the conditions necessary for correction of ministerial errors contained in section 351.224 of the regulations. Petitioners argue that Xinyi did not identify any error of omission or commission in its request, which is required according to section 351.224(4)(d). Petitioners argue that it is Xinyi's responsibility, and not the Department's, to identify any errors in the Final Determination.
Department's Position: We disagree with Xinyi. Xinyi has not alleged an error, specific or otherwise, by the Department in the Department's calculation of Xinyi's margin that would fall within the meaning of 19 CFR 351.224(f). Xinyi argues that, because it obtained different margin results then those calculated by the Department, the Department's margin calculations must contain clerical errors. Xinyi has provided no official record evidence that the Department has made a clerical error in Xinyi's margin calculation program or has Xinyi provided an appropriate correction pursuant to the requirements of 19 CFR 351.224(d). Aberrational Indian Import Statistics Data
Comment 3: Xinyi argues that the Department incorrectly included aberrational Indian Import Statistics data for colored float glass imports from the United Arab Emirates in September 2000, aberrational values for colored float glass imports from Belgium in September and December 2000, and aberrational values for colored float glass imports from Taiwan in August and December 2000. Xinyi argues that the import data from these countries and the values for the specific months listed above are aberrationally high when compared to the average colored float glass surrogate value calculated by the Department.
Petitioners argue that Xinyi's claims that certain Indian Import Statistics data are aberrationally high is a new substantive methodological argument. Petitioners contend that this new argument is subject to comment and rebuttal by interested parties to the investigation and to a final determination by the Department. Additionally, Petitioners argue that Xinyi had ample opportunities to argue that there were aberrations in the Indian Import Statistics data, but did not do so.
Department Position: We disagree with Xinyi that this is a ministerial error. The Department included Indian imports from Belgium, Taiwan, and the United Arab Emirates as set forth in Attachment 4 of the Factor Valuation Memorandum for the Preliminary Determination. This remained unchanged for the Final Determination. Therefore, the allegation is not a ministerial error pursuant to 19 CFR 351.224(f).
Petitioner's Allegations of Ministerial Errors for FYG
Colored Float Glass Surrogate Value from the Indian Import Statistics
Comment 4: Petitioners allege that the Department made a ministerial error by failing to apply the Indian surrogate value used for colored float glass, exclusive of Thailand and Korea. Citing to the Department's Factors of Production Valuation Memorandum for the Final Determination (Factor Value Memo), Petitioners argue that the Department determined in the Final Determination to exclude Thai and Korean prices for all inputs in its surrogate value calculations and also in determining market economy purchases. Petitioners maintain that the Department's failure to apply the revised Indian surrogate value for the colored float glass resulted in an understatement of the value of a certain type of windshield. Because the type of windshield is business proprietary information, see the Amended Final Analysis Memo for a further discussion of this issue.
FYG points out that the windshield in question is comprised of two types of float glass. FYG argues, therefore, that Petitioners' methodology of using a weighted-average of only one value for the windshield is distortive.
Department's Position: We agree with Petitioners. In the Final Determination, the value of colored float glass, the second pane of glass used for the windshield in question, was derived by the Department using FYG's market economy purchases. However, the Department inadvertently failed to exclude market economy purchases from Thailand and Korea from FYG's market economy purchases of colored float glass. As the Department stated in Comment 1 of the final Issues and Decision Memorandum, it would disregard prices that the Department has reason to believe or suspect are distorted by subsidies, including FYG's market economy purchases from Thailand and Korea. See Final Determination, 67 FR 6482 (February 12, 2002) and accompanying Issues and Decision Memorandum at Comment 1. When market economy purchases of colored float glass from Thailand and
Korea are excluded, the Department must then use Indian Import Statistics to value colored float glass because FYG did not purchase colored float glass from other market economy countries. Therefore, for the amended final determination, we will use the Indian surrogate value for colored glass less purchases of Thai and Korean float glass. See Amended Final Analysis Memo. International Freight Container Rate
Comment 5: Petitioners argue that the Department erred in the Final Determination in its calculation of ocean freight by using a freight rate for a 20-foot container instead of a freight rate for a 40-foot container, which is the container size used by FYG in transporting subject merchandise. Citing to the Factor Value Memo, Petitioners maintain that the Department rejected, in part, FYG's methodology for freight and used a freight rate provided by the Federal Maritime Commission. Petitioners contend that the Department used a basic freight rate for a 20-foot shipping container, to which was added a fuel surcharge and destination delivery charge. Petitioners assert that their October 29, 2001 Surrogate Values Submission provided evidence on the record to value a 40-foot shipping container. Petitioners further contend that the Department should either: (1) match the particular ocean rate to the closest port of entry for each shipment; or (2) apply an average of the ocean rates for all ports through which the non- market economy (``NME'') shipments entered for which surrogate ocean freight is being assigned.
FYG agrees with Petitioners that the Department incorrectly used a 20-foot container rate when the Department should have used a 40-foot container rate to value ocean shipping. However, FYG argues that Petitioners' suggested ocean freight value was rejected by the Department for the final determination. FYG suggests that the Department use the actual freight rates paid for the ocean segment of the overall transportation charge, which are reported in Exhibit 19-A of FYG's verification report. See Memorandum from Stephen Bailey, Sarah Ellerman, case analysts and Emily Lawson, Office of Chief Counsel through James C. Doyle, Program Manager to the File: Verification of Sales and Factors of FYG in the Antidumping Duty Investigation of Automotive Replacement Glass Windshields from the People's Republic of China (FYG Verification Report) dated December 19, 2001, Exhibit19-A. FYG also suggests the Department convert the 20-foot container charge to a 40-foot container charge by using a conversion rate presented in their October 29, 2001 submission.
Department's Position: The Department agrees that this is a ministerial error. In our analysis memorandum for FYG, the Department stated that it would value shipping containers based on a length of 40 feet but instead valued it on a 20-foot container rate. See Analysis for the Final Determination of Automotive Replacement Glass Windshields (``ARG'') from the People's Republic of China: Fuyao Glass Industry Group Co., Ltd., (``FYG'') (February 1, 2002) (FYG's Final Analysis Memo). In order for the Department to correct this error (i.e., obtain a 40-foot shipping container base rate), we must adjust the 20-foot base container rate to reflect a 40-foot base container rate. In this instance, we are using information provided by FYG to convert a 20-foot base container rate to a 40-foot base container rate to determine a surrogate value for ocean freight. By reviewing a contract between FYG and a market economy shipper, reviewed at verification, and using information provided by FYG in its October 29, 2001 submission, the Department determined that the rate charged for a 40-foot container is 33 percent higher than the rate charged for a 20-foot container. See FYG Verification Report, Exhibit 19-A. The Department has multiplied this conversion rate, 1.33, by the charge for a 20 foot container to arrive at a charge for a 40 foot container. See Amended Final Analysis Memo. FYG's methodology allows the Department to continue to use information from the Federal Maritime Commission, as used in the Final Determination. The Department did not use Petitioners' proposed correction or FYG's other proposed correction because both change the ocean freight methodology used by the Department in the Final Determination. Wholesale Price Index Base for Domestic Inland Insurance
Comment 6: Petitioners allege that the Department made a ministerial error by using a 1992 Wholesale Price Index (``WPI'') base for data collected from the period November 1991 through April 1992 in calculating an average value in Indian rupees per metric ton value for domestic inland insurance, as opposed to using a WPI that corresponds to the period for the Indian surrogate value, which is November 1991 through April 1992. Citing the Department's Notice of Amended Preliminary Antidumping Duty Determination of Sales at Less Than Fair Value: Automotive Replacement Glass Windshields From the People's Republic of China, 66 FR 53776 (October 24, 2001) (Amended Preliminary Determination), Petitioners argue that the Department stated that it considered this a methodological error at the preliminary determination and would consider this error for the final determination. Additionally, Petitioners contend that the Department did not address this issue in the Final Determination. Furthermore, Petitioners assert that they provided International Financial Statistics (``IFS'') for the period November 1991 through April 1992 in their September 24, 2001 submission which contain all relevant IFS data necessary for the Department to calculate an accurate WPI for the period in question. Petitioners also argue that the WPI for the period November 1991 through April 1992 should be adjusted to account for the re-basing of the Indian WPI, which occurred in June 1994 and June 1999.
FYG argues that Petitioners' allegation is not a ministerial error but a methodological argument. Also, FYG also asserts that Petitioners' methodology for determining the correct inflation rate is flawed because it incorrectly adjusts the WPI to account for re-basing. FYG also argues that the correct inflation rate adjustment that it calculated results in basically the same rate used by the Department in the Final Determination.
Department's Position: We agree with Petitioners. The Department intended to correct this error in the Final Determination. See Amended Preliminary Determination at 53778. However, we inadvertently failed to make this correction in the Final Determination. Therefore, the Department is using the Indian WPI for the period November 1991 through April 1992 from IFS data. Additionally, the Department has adjusted the WPI to account for the re-basing which occurred in June 1994, by multiplying the WPI for the period November 1991 through April 1992 by 0.70, which is the percentage change in the WPI between May 1994 and August 1994. The Department has also adjusted the WPI to account for the re-basing which occurred in June 1999, by multiplying the WPI by 0.61, which is the percentage change in the WPI between May 1999 and August 1999. See Amended Final Analysis Memo. Weight Conversion for Other Scrap Glass
Comment 7: Petitioners argue that the Department made a ministerial error by inadvertently converting a value to a kilogram basis that was already being
consumed on a kilogram basis. Citing to FYG's Verification Report at 14, Petitioners allege that FYG reported that ``Other Scrap Glass'' was reported on a kilogram basis, not in square meters as the Department assumed.
FYG argues that the Department was correct in converting a kilogram value into a meters squared value because FYG's reported consumption rate for the ``Other Scrap Glass'' offset was in meters squared.
Department's Position: We disagree with Petitioners. The Department verified that FYG reported that ``the big pieces of scrap generated from the cutting process . . . is sold on a square meter basis.'' See FYG Verification Report at 14. Therefore, for the final determination, the Department calculated a surrogate value for ``Other Scrap Glass'' by multiplying the Indian surrogate value, which is reported in kilograms, by a kilograms-to-square-meter conversion rate which is based on the amount of kilograms in a square meter of glass. See FYG's Final Analysis Memo, dated February 1, 2002.
Petitioner's Allegations of Ministerial Errors for Xinyi
Plastic Adhesives Surrogate Value from the Indian Import Statistics
Comment 8: Petitioners allege that the Department made a ministerial error by deducting the value and quantity of Switzerland's exports of plastic adhesives (rather than Thailand's value and quantity of exports) to India from the Indian Import Statistics.
Xinyi did not provide rebuttal comments.
Department's Position: We agree with Petitioners. The Department intended to deduct, from Indian Import Statistics, imports of plastic adhesives from Thailand, but instead deducted imports of plastic adhesives from Switzerland. As the Department stated in Comment 1 of the Issues and Decision Memo, we will disregard prices that we have reason to believe or suspect are distorted by subsidies, including the values from Thailand and Korea. Therefore, for the amended final determination, we will deduct Thailand's exports of plastic adhesives (rather than Switzerland's exports) to India from the Indian Import Statistics in our surrogate value calculation for plastic adhesives. See Amended Final Analysis Memo.
Petitioner's Allegations of Ministerial Errors for FYG and Xinyi
Adhesive Sheets (Tape) Calculation Error
Comment 9: Petitioners allege that the Department made a ministerial error by including two minus signs when deducting Korean imports of adhesive sheets (tape) from the quantity and value of Indian Import Statistics. Petitioners argue that this error resulted in an understatement of the value of adhesive sheets (tape).
FYG agrees with Petitioners that the Department incorrectly included a double minus sign in its calculation sheet which resulted in counting the Indian imports of Korean adhesive sheets (tape) twice in the surrogate value calculation. However, FYG argues that the per unit surrogate value provided by the Petitioners is not correct.
Department's Position: We agree with Petitioners and FYG that this is a ministerial error. The Department intended to deduct, from Indian Import Statistics, imports of adhesive sheets from Korea. However, the Department double counted imports of adhesive sheets from Korea by inadvertently including two minus signs in the calculation sheet, which resulted in Korean imports being added twice instead of being deducted. As stated in Comment 8, the Department intended to disregard prices from Korea. The Department agrees with FYG that Petitioners' per unit surrogate value, while properly deducting Korean imports of adhesive sheets from Indian Import Statistics, is incorrect due to addition errors. Therefore, for the amended final determination, we will remove one minus sign in the calculation sheet for Korean exports of adhesive sheets (tape) to correct for this error. See Amended Final Analysis Memo.
Amended Final Determination
In accordance with 19 CFR 351.224(e), we are amending the final determination of the antidumping duty investigation of ARG from the PRC to reflect the correction of the above-cited ministerial errors. The revised final weighted-average dumping margins are as follows:
Original Weighted Exporter/Manufacturer
Average Margin Percent Revised Weighted for Final
Average Margin Percent
Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, we are directing the United States Customs Service (``Customs'') to continue suspending liquidation on all imports of the subject merchandise from the PRC. Customs shall require a cash deposit or the posting of a bond equal to the weighted-average amount by which normal value exceeds the export price as indicated in the chart above. These suspension-of- liquidation instructions will remain in effect until further notice.
International Trade Commission Notification
In accordance with section 735(d) of the Act, we have notified the International Trade Commission of our amended final determination.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act.
March 6, 2002. Faryar Shirzad, Assistant Secretary for Import Administration.
[FR Doc. 02-6290Filed3-14-02; 8:45 am]
BILLING CODE 3510-DS-S