[Federal Register Volume 66, Number 206 (Wednesday, October 24, 2001)]
[Notices]
[Pages 53776-53778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26787]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-867]
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
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Amended preliminary antidumping duty determination of sales at
less than fair value.
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EFFECTIVE DATE: October 24, 2001.
FOR FURTHER INFORMATION CONTACT: Stephen Bailey, AD/CVD Enforcement
Group III, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
1102.
The Applicable Statute and Regulations
Unless otherwise indicated, all citations for 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 CFR part 351 (2000).
Scope of the Investigation
The products covered by this investigation are automotive
replacement glass (``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 (i.e., passengers 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.
As discussed in our notice of initiation, the scope of this
investigation poses unique problems of administration. For the final
determination, we continue to invite parties to provide information on
physical characteristics which would allow U.S. Customs officials to
distinguish between ARG windshields, and windshields for new
automobiles. We also invite comments on procedures for administering
any order which may result from this investigation on the basis of end
use. Finally, information on the record shows that all windshields
imported from the PRC during the POI were ARG windshields;
consequently, we note that even if the scope of this order were to
cover all windshields, the Department would have all the information
necessary to make a final determination.
Amendment of Preliminary Determination
On September 10, 2001, the Department of Commerce (``the
Department'') preliminary determined that ARG windshields from the
People's Republic of China (``PRC'') is being, or is 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 Notice of Preliminary
Determination of Sales at Less Than Fair Value: Certain Automotive
Replacement Glass Windshields from the People's Republic of China, 66
FR 48233 (September 19, 2001).
On September 21, 2001, respondent, Fuyao Glass Industry Group
Company, Ltd. (``FYG'') and petitioners timely filed allegations that
the Department made ministerial errors in the final determination.
The Department is amending the preliminary determination in the
antidumping investigation of ARG windshields from the PRC only for FYG.
Significant Ministerial Error
A significant ministerial error is defined as an error, the
correction of which, singly or in combination with other errors, would
result in (1) a change of at least five absolute percentage points in,
but not less than 25 percent of, the weighted-average dumping margin
calculated in the original (erroneous) preliminary determination; or
(2) a difference between a weighted-average dumping margin of zero or
de minimis and a weighted-average dumping margin of greater than de
minimis or vice versa. See 19 CFR 351.224(g).
FYG's Allegations of Ministerial Errors by the Department
Comment 1: FYG argues that the Department incorrectly calculated
constructed export price (``CEP'') profit. FYG argues that the CEP
profit ratio, calculated by the Department, should be multiplied by
U.S. selling expenses to derive CEP profit. FYG points out that the
Department incorrectly multiplied the CEP profit ratio by gross unit
price. FYG cites section 772(d)(3) of the Act and DOC Policy Memo 97/1
in arguing that the CEP profit ratio must be multiplied by U.S. Selling
expenses, not gross unit price.
Department's Position: We are with FYG. The Department's practice
is to multiply the CEP profit ratio by U.S. selling expenses. The
Department will change the calculation for the final determination by
multiplying the CEP profit rate by U.S. selling expenses. The
correction of this error in combination with the correction of the
other errors would result in a margin of 3.04 percent. This is more
than five percentage points different from and more than 25 percent of
the weighted-average dumping margin calculated in the preliminary
determination (9.79%). Accordingly, the error alleged by respondent is
a significant ministerial error within the meaning of 19 CFR
351.224(g)(1).
Comment 2: FYG alleges that the Department double counted molding.
FYG argues that the Department deducted an amount from U.S. price to
[[Page 53777]]
account for molding purchases made in the U.S. and shipped directly to
FYG's U.S. customer. FYG argues that the Department should not deduct
an amount for molding from U.S. price when molding is sourced from
Taiwan. FYG argues that they provided a ratio for control numbers
(``CONNUM'') for which molding was purchased and that the Department
should use this ratio to allocate molding purchases from U.S.
suppliers.
Department's Position: The Department does not agree that this is a
ministerial error. FYG reported in its June 25, 2001 response at 8,
that it had no way to distinguish between those sales which used
molding sourced in the United States (and shipped directly to the U.S.
customer), and those sales which used molding purchased from the United
States and shipped to China (to be included in the shipment). The
Department, therefore, made an adjustment for molding for all U.S.
sales. Therefore, we are not making the suggested correction because
the alleged error is not an unintentional error covered by the
ministerial error provision.
Comment 3: FYG alleges that the Department failed to correctly
calculate the freight expense for the input of coal. Citing the Factors
of Production Memorandum (``FOP Memo'') at 20, FYG maintains that the
Department should use the shorter of the distance from the domestic
supplier to FYG's factory or the distance from the nearest seaport to
FYG's factory (See Sigma Corp. v. United States, 117 F. 3d 1401 (Fed.
Cir. 1997)). FYG argues that the Department calculated distance using
the ``Sigma'' freight distance, and should have instead used the actual
distance from the supplies to FYG's factory, which is shorter than the
distance between the port and FYG's factory.
Department's Position: We agree with FYG and have used the actual
distance between the coal supplier and FYG's factory. We have revised
the freight input calculation to reflect this correction. The
correction of this error in combination with the correction of the
other errors would result in a margin of 3.04 percent. This is more
than five percentage points different from and more than 25 percent of
the weighted-average dumping margin calculated in the preliminary
determination (9.79%). Accordingly, the error alleged by respondent is
a significant ministerial error within the meaning of 19 CFR
351.244(g)(1).
Comment 4: FYG alleges that the Department made a ministerial error
by improperly deducting a molding cost for a CONNUM that in fact
included no molding. Citing Exhibit 6 of its August 15, 2001
submission, FYG argues that the data provided in this exhibit contained
a CONNUM that should not have been merged into the U.S. and FOP
dataset. FYG argues that the seventh digit in the CONNUM denotes that
no molding was sold with this particular model and, therefore, sales
with this CONNUM should not have a molding deduction.
Department's Position: The Department does not agree that this a
ministerial error. The Department relied on FYG's August 15, 2001
submission which shows that for the CONNUM in question, market economy
molding purchases occurred. The Department relied on FYG's response in
preparing the calculations and it is not evident that the CONNUM in
question did not in fact have molding purchases. Therefore, we are not
making the suggested correction because the alleged error is not an
unintentional error covered by the ministerial error provision.
Comment 5: FYG alleges that the Department made a ministerial error
by incorrectly failing to add selling, general and administrative
(``SG&A'') costs to the cost of manufacture (``COM'') in calculating
cost of production (``COP''). Citing FOP Memo at 17, FYG points out
that the Department intended to calculate COP by summing materials,
energy, labor, overhead, and selling, general and administrative
expenses (``SG&A''). FYG argues that the COP figure did not include
costs associated with SG&A, only materials, energy, labor and overhead.
Department's Position: The Department agrees that this is a
ministerial error. The Department normally adds SG&A to COM to derive
COP, which we failed to do in this case. The correction of this error
in combination with the correction of the other errors would result in
a margin of 3.04 percent for FYG. This is more than five percentage
points different from and more than 25 percent of the weighted-average
dumping margin calculated in the preliminary determination (9.79%).
Accordingly, the error alleged by respondent is a significant
ministerial error within the meaning of 19 CFR 351.224(g)(1).
Comment 6: FYG alleges that the Department used an outdated labor
rate in calculating inputs. Citing 1998 Yearbook of Labour Statistics
and the Department's regression-based analysis posted on its Web site,
FYG argues that the labor rate used in the preliminary determination is
outdated, compared with a more contemporaneous labor rate for 1999 now
listed on the Department's Web site.
Department's Position: The Department does not agree that this is a
ministerial error. The Department used information available at the
time of the preliminary determination and at that time listed on its
website. Labor rates for 1999 were not available to the Department at
the time of the preliminary determination. Therefore, we are not making
the suggested correction because the alleged error is not an
unintentional error covered by the ministerial error provision.
Petitioner's Allegations of Ministerial Errors by the Department
Comment 7: Petitioners allege that the Department made a
ministerial error in the value it assigned to the second panel of glass
of FYG's solar windshields. Citing FYG's June 25, 2001 submission at
11, petitioners point out that FYG reported it uses one pane of
standard float glass and one pane of solar glass when it constructs a
solar windshield. Petitioners argue that the Department should treat
standard float glass as clear float glass, instead of colored float
glass.
Department's Position: The Department does not agree that this is a
ministerial error. FYG explained that standard float glass was used
along with a solar panel in the construction of solar windshields. The
Department does not consider this record information to be sufficient
to make a determination that standard glass is clear glass. The
Department also notes that FYG uses a small amount of clear glass in
producing subject merchandise. The Department plans to examine this
information more closely at verification. Therefore, we are not making
the suggested correction because the alleged error is not an
unintentional error covered by the ministerial error provision.
Comment 8: Petitioners allege that the Department made a
ministerial error in the values it assigned to Xinyi Automotive Glass
(Shenzhen) Company, Ltd.'s (``Xinyi'') PVB. Citing the FOP Memo at 7,
petitioners point out that Attachment 4 to the FOP Memo lists the value
for clear PVB and shaded PVB differently then those listed on page 7 of
the FOP memo. Petitioners argue that the values listed for clear PVB
and shaded PVB should be reversed.
Department's Position: The Department agrees that this is a
ministerial error. The Department found that the values calculated for
clear and shaded PVB in the FOP Memo were reversed. The Department
found that after correction of this error, Xinyi's margin remains de
minimis. Accordingly, the error alleged by
[[Page 53778]]
respondent is not a significant ministerial error within the meaning of
19 CFR 351.224(g)(1) or (2) and we are not issuing an amended
preliminary determination. The Department of Commerce will, however,
correct this error for the final determination.
Comment 9: Petitioners allege that the Department made a
ministerial error by using the incorrect Wholesale Price Index
(``WPI'') value for December 2000. Citing International Financial
Statistics (``IFS''), May 2001, petitioners argue that the Department
used a preliminary value listed in this publication, instead of using
the final WPI for December 2000 as it is listed in the IFS for July
2001. Petitioners also argue that the WPI listed for December 2000 was
in bold to indicate that it is preliminary. Petitioners also maintain
that the WPI for other periods used by the Department (April 2000-
December 2000, April 1998-March 1999, 1997, and 1996) do not match what
is reported in the July 2001 edition of IFS.
Department's Position: The Department does not agree that this is a
ministerial error. Contrary to petitioners' argument, the December 2000
WPI was not bolded (denoting a preliminary number) in the May 2001
issue of IFS used by the Department. The Department utilized the most
recent information on the record at the time of the preliminary
determination. June WPI data were not available. In regard to the other
claimed inaccuracies listed above, petitioners derive different WPI's
due to rounding differences. Therefore, we are not making the suggested
correction because the alleged error is not an unintentional error
covered by the ministerial error provision.
Comment 10: Petitioners allege that the Department made a
ministerial error by using a 1992 WPI base for data collected from the
period November 1991 through April 1992 in calculating an average value
in Rupees per metric ton value for domestic inland insurance. Citing
the Department's Web site (http://www.ia.ita.doc.gov/factorv/prc/#Source Index), which shows the average value in Rupees per metric ton,
petitioners argue that the period of data used to calculate the average
value in Rupees per metric ton should coincide with the period November
1991 through April 1992, and not the 1992 time period, as used by the
Department. Petitioners also argue that the Department should have used
the adjusted base year figure for 1992.
Department's Position: The Department does not agree that this is a
ministerial error. The Department considers the argument by petitioners
to be one of methodology and not ministerial. Therefore, we are not
making the suggested correction because the alleged error is not an
unintentional error covered by the ministerial error provision.
However, the Department will examine both issues mentioned above more
closely for the final determination.
Comment 11: Petitioners allege that the Department made a
ministerial error by including labor expenses, both direct and
indirect, incurred by surrogate company Saint-Gobain Sekurit India
Limited (``St. Gobain'') in the Department's calculation of the
financial ratio for factory overhead and ultimately in the SG&A ratio.
Petitioners argue that inclusion of total labor from St. Gobain in the
calculation of factory overhead by the Department is incorrect because
doing so would include not only direct, but indirect labor in the total
COM.
Department's Position: The Department does not agree that this is a
ministerial error. The Department regards its decision to account for
labor in the build-up of COM as one of selected methodology. Based on
the information available to the Department, there was no way to
distinguish between indirect and direct labor in reviewing St. Gobain's
financial statement. The Department also took into consideration that a
majority of the labor reported in St. Gobain's financial statement,
absent information to the contrary, is more likely to be direct labor.
Therefore, we are not making the suggested correction because the
alleged error is not an unintentional error covered by the ministerial
error provision.
We are amending the preliminary results 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 Revised
weighted weighted
Exporter/ manufacturer average average
margin margin
percent percent
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FYG............................................... 9.79 3.04
All Others Rate................................... 9.79 3.04
------------------------------------------------------------------------
Suspension of Liquidation
In accordance with section 635(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.
ITC Notification
In accordance with section 635(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 733(f) and 777(i)(1) of the Act.
Dated: October 17, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 01-26787 Filed 10-23-01; 8:45 am]
BILLING CODE 3510-DS-M