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

DEPARTMENT OF COMMERCE

[A-588-005]

High Power Microwave Amplifiers and Components Thereof From

Japan; Preliminary Results of Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice of preliminary results of Antidumping Duty

Administrative Review.

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SUMMARY: In response to a request by the petitioner, MCL, Inc., the

Department of Commerce (the Department) is conducting an administrative

review of the antidumping duty order on high power microwave amplifiers

and components thereof (HPMAs) from Japan. This review covers NEC

Corporation (NEC), a manufacturer/exporter of this merchandise to the

United States, and the period July 1, 1994, through June 30, 1995. The

firm failed to submit a response to our questionnaire. As a result, we

have preliminarily determined to use facts otherwise available for cash

deposit and appraisement purposes.

Interested parties are invited to comment on these preliminary

results. Parties who submit arguments in this proceeding are requested

to submit with the arguments: (1) a statement of the issues and (2) a

brief summary of the arguments.

EFFECTIVE DATE: May 6, 1996.

FOR FURTHER INFORMATION CONTACT: Hermes Pinilla or Michael Rill, Office

of Antidumping Compliance, Import Administration, International Trade

Administration, U.S. Department of Commerce, 14th Street and

Constitution Avenue, N.W., Washington, DC 20230; telephone: (202) 482-

4733.

SUPPLEMENTARY INFORMATION:

Applicable Statute

Unless otherwise indicated, all citations to the statute are

references to the provisions effective January 1, 1995, the effective

date of the amendments made to the Tariff Act of 1930 (the Act) by the

Uruguay Round Agreements Act (URAA).

Background

On July 31, 1995, the petitioner, MCL, Inc., requested in

accordance with section 353.22(a) of the Department's regulations (19

CFR 353.22(a)) an administrative review of the antidumping duty order

(47 FR 31413, July 20, 1982) on HPMAs from Japan with respect to NEC, a

manufacturer/exporter of this merchandise to the United States, and

covering the period July 1, 1994, through June 30, 1995. We published a

notice of initiation of the review on August 16, 1995 (60 FR 42500).

The Department is now conducting this review in accordance with section

751 of the Act.

Scope of the Review

The products covered by this review are high power microwave

amplifiers and components thereof. High power microwave amplifiers are

radio-frequency power amplifier assemblies, and components thereof,

specifically designed for uplink transmission in C, X, and Ku bands

from fixed earth stations to communications satellites and having a

power output of one kilowatt or more. High power microwave amplifiers

may be imported in subassembly form, as complete amplifiers, or as a

component of higher level assemblies (generally earth stations). This

merchandise is currently classifiable under item 8525.10.80 of the

Harmonized Tariff Schedule (HTS). The HTS item number is provided for

convenience and customs purposes. The written description remains

dispositive.

The review covers NEC and the period July 1, 1994, through June 30,

1995 (POR).

Use of Facts Otherwise Available

We preliminarily determine, in accordance with section 776(c) of

the Act, that the use of facts available is appropriate for NEC because

it did not respond to the Department's antidumping questionnaire. We

sent NEC a questionnaire seeking information necessary to conduct a

review of NEC's sales of merchandise subject to this review. NEC did

not respond to the questionnaire. Rather, NEC submitted a letter on

January 18, 1996, stating that unrelated third parties

[[Page 20224]]

outside Japan sold subject merchandise to customers in the United

States during the POR, but that NEC was ``not in a position to respond

to the questionnaire based on the sales of subject merchandise made by

unaffiliated third parties * * *.'' On February 15, 1996, the

Department requested NEC to clarify whether NEC knew, or had reason to

know, the ultimate destination of subject merchandise sold to these

unaffiliated parties and requested NEC to report its sales to these

customers as U.S. sales. NEC submitted a letter on February 26, 1996,

stating that, at the time of sale, NEC had, or had reason to have,

knowledge that the ultimate destination of the subject merchandise

would be the United States. NEC asserted, however, that it was neither

feasible nor appropriate for NEC to respond to the Department's

questionnaire based upon these indirect sales. NEC again referred to

its inability to provide information concerning sales of unaffiliated

parties, but did not explain why it is not feasible to report its own

sales of subject merchandise.

Because necessary information is not available on the record for

the 1994-95 POR as a result of NEC withholding the requested

information, we must make our preliminary determination based on facts

otherwise available (section 776(a) of the Act).

The Department finds that, in not responding to the questionnaire,

NEC failed to cooperate by not acting to the best of its ability to

comply with a request for information from the Department.

Where the Department must base the entire dumping margin for a

respondent in an administrative review on the facts available because

that respondent failed to cooperate, section 776(b) of the Act

authorizes the Department to use an inference adverse to the interests

of that respondent in choosing the facts available. Section 776(b) of

the Act also authorizes the Department to use as adverse facts

available information derived from the petition, the final

determination, a previous administrative review, or other information

placed on the record. Because information from prior segments of the

proceeding constitutes secondary information, section 776(c) of the Act

provides that the Department shall, to the extent practicable,

corroborate that secondary information from independent sources

reasonably at its disposal. The Statement of Administrative Action

(SAA) provides that ``corroborate'' means that the Department will

satisfy itself that the secondary information to be used has probative

value. See H.R. DOC. No.316, Vol. 1, 103d Cong., 2d Sess. 870 (1994).

To corroborate secondary information, the Department will, to the

extent practicable, examine the reliability and relevance of the

information to be used. However, unlike for other types of information,

such as input costs or selling expenses, there are no independent

sources for calculated dumping margins. The only source for margins is

administrative determinations. Thus, in an administrative review, if

the Department chooses as total adverse facts available a calculated

dumping margin from a prior segment of the proceeding, it is not

necessary to question the reliability of the margin for that time

period. With respect to the relevance aspect to corroboration, however,

the Department will consider information reasonably at its disposal as

to whether there are circumstances that would render a margin not

relevant. Where circumstances indicate that the selected margin is not

appropriate as adverse facts available, the Department will disregard

the margin and determine an appropriate margin (see, e.g., Fresh Cut

Flowers from Mexico; Final Results of Antidumping Duty Administrative

Review, 61 FR 6812 (February 22, 1996) (the Department disregarded the

highest margin in that case as adverse BIA because the margin was based

on another company's uncharacteristic business expense resulting in an

unusually high margin)).

In this case, the highest rate applicable to NEC from any prior

segment of the proceeding is 41.4 percent. This is a margin calculated

in the original investigation using information provided by NEC. We

have selected 41.4 percent as the facts available margin for this POR.

To the best of our knowledge, there are no circumstances indicating

that this margin is inappropriate as adverse facts available (see High

Power Microwave Amplifiers and Components From Japan; Final

Determination of Sales at Less Than Fair Value, 47 FR 22134 (May 21,

1982)).

Preliminary Results of the Review

As a result of our review, we preliminarily determine that a margin

of 41.4 percent exists for NEC for the period July 1, 1994, through

June 30, 1995.

Any interested party may request a hearing within 10 days of

publication. Any hearing, if requested, will be held 44 days after the

date of publication, or the first workday thereafter. Case briefs and/

or written comments from interested parties may be submitted not later

than 30 days after the date of publication of this notice. Rebuttal

briefs and rebuttals to written comments, limited to issues raised in

the case briefs and comments, may be filed not later than 37 days after

the date of publication. Parties who submit arguments in this

proceeding are requested to submit with the arguments: (1) a statement

of the issues and (2) a brief summary of the arguments. The Department

will publish the final results of the administrative review, including

the results of its analysis of issues raised in any such written

comments or at a hearing.

Upon completion of this administrative review, the Department will

issue appraisement instructions directly to the Customs Service.

Furthermore, the following deposit requirements will be effective

upon publication of the final results of administrative review for all

shipments of HPMAs from Japan entered, or withdrawn from warehouse, for

consumption on or after the publication date, as provided by section

751(a)(1) of the Act: (1) the cash deposit rate for the reviewed

company will be that established in the final results of this

administrative review; (2) for manufacturers and exporters not covered

in this review, but covered in a previous review or the original less-

than-fair-value (LTFV) investigation, the cash deposit rate will

continue to be the company-specific rate published for the most recent

period; (3) if the exporter is not a firm covered in this review, a

previous review, or the original LTFV investigation, but the

manufacturer is, the cash deposit rate will be that established for the

most recent period for the manufacturer of the merchandise; and (4) the

cash deposit rates for all other manufacturers or exporters will be

33.4 percent, as explained below.

On May 25, 1993, the Court of International Trade (CIT) in Floral

Trade Council v. United States, 822 F. Supp. 766 (CIT 1993), and

Federal Mogul Corporation v. United States, 822 F. Supp. 782 (CIT

1993), decided that once an ``all others'' rate is established for a

company it can only be changed through an administrative review. The

Department has determined that in order to implement these decisions,

it is appropriate to reinstate the original ``all others'' rate from

the less-than-fair-value (LTFV) investigation (or that rate as amended

for correction of clerical errors or as a result of litigation) in

proceedings governed by antidumping duty orders for the purposes of

establishing cash deposits in all current and future administrative

reviews.

[[Page 20225]]

In this case, the Department established two ``all others'' rates

in the final determination of the LTFV investigation (47 FR 22134, May

21, 1982). These rates were 25.4 percent for imports of TWT high power

amplifiers and parts dedicated exclusively for use in TWT high power

amplifiers and 41.4 percent for imports of Klystron high power

amplifiers and amplifiers components not dedicated exclusively for use

in TWT high power amplifiers. However, antidumping duty orders pertain

to individual classes or kinds of merchandise (see, e.g., Antidumping

Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical

Plain Bearings, and Parts Thereof From Japan, 54 FR 20904 (May

15,1989), and Antidumping Duty Orders: Heavy Forged Hand Tools,

Finished or Unfinished, With or Without Handles From the People's

Republic of China, 56 FR 6622 (February 19, 1991)) and the Department's

practice is to calculate a single ``all others'' rate for each class or

kind of merchandise. There is no indication that this proceeding covers

two classes or kinds of merchandise. Accordingly, we have calculated a

single average of these two rates, which is 33.4 percent, as the ``all

others'' rate for imports of this merchandise in a manner consistent

with the CIT's decisions.

These requirements, when imposed, shall remain in effect until

publication of the final results of the next administrative review.

This notice serves as a preliminary reminder to importers of their

responsibility under 19 CFR 353.26 to file a certificate regarding the

reimbursement of antidumping duties prior to liquidation of the

relevant entries during this review period. Failure to comply with this

requirement could result in the Secretary's presumption that

reimbursement of antidumping duties occurred and the subsequent

assessment of double antidumping duties.

This administrative review and notice are in accordance with

section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.

Dated: April 26, 1996.

Susan G. Esserman

Assistant Secretary for Import Administration.

[FR Doc. 96-11127 Filed 5-3-96; 8:45 am]

BILLING CODE 3510-DS-P