Large Residential Washers From Mexico: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 46401-46408 [2012-19054]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Notices]
[Pages 46401-46408]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19054]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-201-842]


Large Residential Washers From Mexico: Preliminary Determination 
of Sales at Less Than Fair Value and Postponement of Final 
Determination

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


DATES: Effective Date: August 3, 2012.
SUMMARY: We preliminarily determine that large residential washers 
(washers) from Mexico are being sold, or are likely to be sold, in the 
United States at less than fair value (LTFV), as provided in section 
733(b) of the Tariff Act of 1930, as amended (the Act).
    Interested parties are invited to comment on this preliminary 
determination. Because we are postponing the final determination, we 
will make our final determination not later than 135 days after the 
date of publication of this preliminary determination in the Federal 
Register.

FOR FURTHER INFORMATION CONTACT: Brian Smith or Brandon Custard, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue NW., Washington, DC 
20230; telephone: (202) 482-1766 or (202) 482-1823, respectively.

Preliminary Determination

    We preliminarily determine that washers from Mexico are being sold, 
or are likely to be sold, in the United States at LTFV, as provided in 
section 733(b) of the Act. The estimated margins of sales at LTFV are 
shown in the ``Suspension of Liquidation'' section of this notice.

Background

    Since the initiation of this investigation on January 19, 2012, the 
following events have occurred.\1\
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    \1\ See Large Residential Washers From the Republic of Korea and 
Mexico: Initiation of Antidumping Duty Investigations, 77 FR 4007 
(January 26, 2012) (Initiation Notice).
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    On February 16, 2012, we selected the three largest producers/
exporters of washers from Mexico as the mandatory respondents in this 
proceeding. See memorandum entitled ``Selection of Respondents for 
Individual Review,'' dated February 16, 2012.
    On February 21, 2012, the United States International Trade 
Commission (ITC) preliminarily determined that there is a reasonable 
indication that imports of washers from Mexico are materially injuring 
the United States industry.\2\
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    \2\ See ITC Investigation Nos. 701-TA-488 and 731-TA-1199-1200 
(Publication No. 4306).
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    On March 5, 2012, we issued section A of the questionnaire (i.e., 
the section covering general information), as well as sections B 
through E of the questionnaire (i.e., the sections covering comparison 
market sales, U.S. sales, cost of production (COP) information, and 
further manufacturing information, respectively) to Electrolux Home 
Products, Corp. NV/Electrolux Home Products De Mexico, S.A. de C.V. 
(Electrolux), Samsung Electronics Mexico S.A. de C.V. (Samsung), and 
Whirlpool International S. de R.L. de C.V. (Whirlpool).
    We received a response to section A of the questionnaire from 
Electrolux in April 2012, and to sections B, C, and D of the 
questionnaire in May 2012. No response to section E of the 
questionnaire was necessary. On March 23 and March 26, 2012, 
respectively, Samsung and Whirlpool submitted letters informing the 
Department that they would not be responding to the questionnaire. See 
``Application of Facts Available'' section, below.
    On May 10, 2012, Whirlpool Corporation (hereafter, the petitioner) 
requested that the date for the issuance of the preliminary 
determination in this investigation be fully extended pursuant

[[Page 46402]]

to section 733(c)(1) of the Act and 19 CFR 351.205(e). On May 16, 2012, 
pursuant to sections 733(c)(1)(A) and (c)(2) of the Act and 19 CFR 
351.205(f), the Department postponed the preliminary determination 
until no later than July 27, 2012.\3\
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    \3\ See Large Residential Washers From the Republic of Korea and 
Mexico: Postponement of Preliminary Determinations of Antidumping 
Duty Investigations, 77 FR 30261 (May 22, 2012).
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    On May 17, 2012, the petitioner submitted a request for the 
Department to amend the scope of this and the concurrent antidumping 
and countervailing duty investigations of washers from the Republic of 
Korea (Korea), and to exclude certain products from those 
investigations. Samsung Electronics Co., Ltd (Samsung Korea) and LG 
Electronics Inc. (LG), respondents in the antidumping and 
countervailing duty investigations of washers from Korea, objected to 
the petitioner's scope exclusion request on May 23 and May 24, 2012, 
respectively. On July 11, 2012, General Electric Company and its 
operating division GE Appliances & Lighting (GE), a domestic producer 
and importer of washers, declared its support for the petitioner's 
scope exclusion request. On July 18, 2012, Staber Industries, Inc. 
(Staber), a domestic producer of washers, also filed a letter in 
support of the petitioner's scope exclusion request. See ``Scope 
Comments'' section of this notice.
    On May 21, 2012, the petitioner alleged that Electrolux made third 
country sales below the COP and, therefore, requested that the 
Department initiate a sales-below-cost investigation of Electrolux. On 
June 5, 2012, the Department initiated a sales-below-cost investigation 
of Electrolux. See the ``Cost of Production Analysis'' section, below.
    We issued supplemental questionnaires from May through July 2012, 
and we received responses to these supplemental questionnaires from May 
through July 2012.\4\
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    \4\ We did not consider any data submissions received after July 
17, 2012, for purposes of the preliminary determination.
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    On June 11, 2012, the petitioner alleged that targeted dumping was 
occurring with respect to washers produced and exported from Mexico by 
Electrolux.
    On July 13, 2012, Electrolux requested a postponement of the final 
determination.

Postponement of Final Determination

    Section 735(a)(2) of the Act provides that a final determination 
may be postponed until not later than 135 days after the date of the 
publication of the preliminary determination if, in the event of an 
affirmative preliminary determination, a request for such postponement 
is made by exporters who account for a significant proportion of 
exports of the subject merchandise, or in the event of a negative 
preliminary determination, a request for such postponement is made by 
the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2), 
require that requests by respondents for postponement of a final 
determination be accompanied by a request for extension of provisional 
measures from a four-month period to not more than six months.
    Pursuant to section 735(a)(2) of the Act, on July 13, 2012, 
Electrolux requested that, in the event of an affirmative preliminary 
determination in this investigation, the Department postpone its final 
determination until not later than 135 days after the date of the 
publication of the preliminary determination in the Federal Register, 
and extend the provisional measures to not more than six months. In 
accordance with 19 CFR 351.210(b), because (1) our preliminary 
determination is affirmative for Electrolux, (2) Electrolux accounts 
for a significant proportion of exports of the subject merchandise, and 
(3) no compelling reasons for denial exist, we are granting 
Electrolux's request and are postponing the final determination until 
no later than 135 days after the publication of this notice in the 
Federal Register. Suspension of liquidation will be extended 
accordingly.

Period of Investigation

    The period of investigation (POI) is October 1, 2010, through 
September 30, 2011. This period corresponds to the four most recent 
fiscal quarters prior to the month of the filing of the petition (i.e., 
December 2011).

Scope of Investigation

    The product covered by this investigation is all large residential 
washers and certain subassemblies thereof from Mexico.
    For purposes of this investigation, the term ``large residential 
washers'' denotes all automatic clothes washing machines, regardless of 
the orientation of the rotational axis, except as noted below, with a 
cabinet width (measured from its widest point) of at least 24.5 inches 
(62.23 cm) and no more than 32.0 inches (81.28 cm).
    Also covered are certain subassemblies used in large residential 
washers, namely: (1) All assembled cabinets designed for use in large 
residential washers which incorporate, at a minimum: (a) At least three 
of the six cabinet surfaces; and (b) a bracket; (2) all assembled tubs 
\5\ designed for use in large residential washers which incorporate, at 
a minimum: (a) a tub; and (b) a seal; (3) all assembled baskets \6\ 
designed for use in large residential washers which incorporate, at a 
minimum: (a) A side wrapper;\7\ (b) a base; and (c) a drive hub;\8\ and 
(4) any combination of the foregoing subassemblies.
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    \5\ A ``tub'' is the part of the washer designed to hold water.
    \6\ A ``basket'' (sometimes referred to as a ``drum'') is the 
part of the washer designed to hold clothing or other fabrics.
    \7\ A ``side wrapper'' is the cylindrical part of the basket 
that actually holds the clothing or other fabrics.
    \8\ A ``drive hub'' is the hub at the center of the base that 
bears the load from the motor.
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    Excluded from the scope are stacked washer-dryers and commercial 
washers. The term ``stacked washer-dryers'' denotes distinct washing 
and drying machines that are built on a unitary frame and share a 
common console that controls both the washer and the dryer. The term 
``commercial washer'' denotes an automatic clothes washing machine 
designed for the ``pay per use'' market meeting either of the following 
two definitions:

    (1) (a) it contains payment system electronics;\9\ (b) it is 
configured with an externally mounted steel frame at least six 
inches high that is designed to house a coin/token operated payment 
system (whether or not the actual coin/token operated payment system 
is installed at the time of importation); (c) it contains a push 
button user interface with a maximum of six manually selectable wash 
cycle settings, with no ability of the end user to otherwise modify 
water temperature, water level, or spin speed for a selected wash 
cycle setting; and (d) the console containing the user interface is 
made of steel and is assembled with security fasteners;\10\ or
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    \9\ ``Payment system electronics'' denotes a circuit board 
designed to receive signals from a payment acceptance device and to 
display payment amount, selected settings, and cycle status. Such 
electronics also capture cycles and payment history and provide for 
transmission to a reader.
    \10\ A ``security fastener'' is a screw with a non-standard head 
that requires a non-standard driver. Examples include those with a 
pin in the center of the head as a ``center pin reject'' feature to 
prevent standard Allen wrenches or Torx drivers from working.
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    (2) (a) it contains payment system electronics; (b) the payment 
system electronics are enabled (whether or not the payment 
acceptance device has been installed at the time of importation) 
such that, in normal operation,\11\ the unit cannot begin a wash 
cycle without first receiving a signal from a bona fide payment 
acceptance device such as an electronic credit card reader; (c) it 
contains a push button user

[[Page 46403]]

interface with a maximum of six manually selectable wash cycle 
settings, with no ability of the end user to otherwise modify water 
temperature, water level, or spin speed for a selected wash cycle 
setting; and (d) the console containing the user interface is made 
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of steel and is assembled with security fasteners.

    \11\ ``Normal operation'' refers to the operating mode(s) 
available to end users (i.e., not a mode designed for testing or 
repair by a technician).
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    Also excluded from the scope are automatic clothes washing machines 
with a vertical rotational axis and a rated capacity of less than 3.70 
cubic feet, as certified to the U.S. Department of Energy pursuant to 
10 CFR 429.12 and 10 CFR 429.20, and in accordance with the test 
procedures established in 10 CFR Part 430.
    The products subject to this investigation are currently 
classifiable under subheading 450.20.0090 of the Harmonized Tariff 
System of the United States (HTSUS). Products subject to this 
investigation may also enter under HTSUS subheadings 8450.11.0040, 
8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS 
subheadings are provided for convenience and customs purposes, the 
written description of the merchandise subject to this scope is 
dispositive.

Scope Comments

    In accordance with the preamble to the Department's 
regulations,\12\ in our Initiation Notice we set aside a period of time 
for parties to raise issues regarding product coverage, and encouraged 
all parties to submit comments within 20 calendar days of publication 
of the Initiation Notice. No interested party submitted comments during 
that period. However, on May 17, 2012, the petitioner indicated that it 
wanted to amend the scope of the investigations, and requested that the 
Department exclude automatic washing machines with a vertical 
rotational axis and a rated capacity of less than 3.70 cubic feet from 
the scope of this investigation and the concurrent antidumping and 
countervailing duty investigations of washers from Korea. Subsequently, 
we received comments from Samsung Korea and LG objecting to the 
petitioner's scope exclusion request, and comments from GE and Staber 
supporting the request. We also contacted U.S. Customs and Border 
Protection (CBP) seeking its input on whether the petitioner's proposed 
scope exclusion request, if granted by the Department, would be 
enforceable by CBP. Based on the comments received from the interested 
parties and information provided by CBP, we are amending preliminarily 
the scope of the investigations to exclude top-load washers with a 
vertical rotational axis and a rated capacity of less than 3.70 cubic 
feet. It is within the Department's authority to define the scope of an 
investigation. See section 732(b)(1) of the Act. Further, it is the 
Department's practice to provide ample deference to the petitioner with 
respect to the merchandise from which it intends to seek relief. See 
memorandum entitled ``Preliminary Exclusion of Top-Load Washing 
Machines with a Rated Capacity Less than 3.70 Cubic Feet from the Scope 
of the Investigations,'' dated concurrently with this notice, for 
further discussion.
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    \12\ See Antidumping Duties; Countervailing Duties; Final Rule, 
62 FR 27296, 27323 (May 19, 1997).
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Application of Facts Available

    Section 776(a) of the Act provides that the Department shall, 
subject to section 782(d) of the Act, apply ``the facts otherwise 
available'' if (1) necessary information is not available on the record 
of an antidumping proceeding or (2) an interested party or any other 
person: (A) withholds information that has been requested by the 
administering authority; (B) fails to provide such information by the 
deadlines for the submission of the information or in the form and 
manner requested, subject to subsections (c)(1) and (e) of section 782 
of the Act; (C) significantly impedes a proceeding under this title; or 
(D) provides such information but the information cannot be verified as 
provided in section 782(i) of the Act.
    Where the Department determines that a response to a request for 
information does not comply with the request, section 782(d) of the Act 
provides that the Department will so inform the party submitting the 
response and will, to the extent practicable, provide that party with 
an opportunity to remedy or explain the deficiency. Section 782(e) of 
the Act provides that the Department ``shall not decline to consider 
information that is submitted by an interested party and is necessary 
to the determination but does not meet all the applicable requirements 
established by the administering authority'' if the information is 
submitted in a timely manner, can be verified, is not so incomplete 
that it cannot be used, and the interested party acted to the best of 
its ability in providing the information.
    In this case, Samsung and Whirlpool stated in letters dated March 
23 and March 26, 2012, respectively, that they would not be responding 
to the Department's questionnaire or otherwise participating in this 
investigation. Thus, the Department preliminarily determines that 
necessary information is not available on the record to serve as the 
basis for the calculation of margins for Samsung and Whirlpool. See 
section 776(a)(1) of the Act. We also preliminarily find that Samsung 
and Whirlpool have withheld information requested by the Department and 
significantly impeded the proceeding. See section 776(a)(2)(A) and (C) 
of the Act.\13\
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    \13\ See also, e.g., Certain Lined Paper Products from India: 
Notice of Final Results of the First Antidumping Duty Administrative 
Review, 74 FR 17149 (April 14, 2009), and accompanying Issues and 
Decision Memorandum at Comment 2.
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    Therefore, pursuant to sections 776(a)(1) and 776(a)(2)(A) and (C) 
of the Act, the Department preliminarily determines that the use of the 
facts otherwise available is warranted for Samsung and Whirlpool. 
Because Samsung and Whirlpool failed to provide any information in this 
investigation, sections 782(d) and (e) of the Act are not applicable in 
this case.

Application of Adverse Facts Available and Selection of Adverse Facts 
Available Rate

    Section 776(b) of the Act provides that, if the Department finds an 
interested party has failed to cooperate by not acting to the best of 
its ability to comply with requests for information, the Department may 
use an inference that is adverse to the interests of that party in 
selecting from the facts otherwise available.\14\ Adverse inferences 
are appropriate ``to ensure that the party does not obtain a more 
favorable result by failing to cooperate than if it had cooperated 
fully.''\15\ Furthermore, ``affirmative evidence of bad faith on the 
part of a respondent is not required before the Department may make an 
adverse inference.''\16\ In this case, the Department has determined 
that Samsung and Whirlpool failed to cooperate to the best of their 
ability in this proceeding by refusing to participate in the 
Department's investigation. Therefore, the Department has preliminarily 
determined an adverse inference is warranted in selecting from the 
facts otherwise available pursuant to section 776(b) of the Act.\17\
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    \14\ See, e.g., Notice of Final Results of Antidumping Duty 
Administrative Review, and Final Determination to Revoke the Order 
In Part: Individually Quick Frozen Red Raspberries from Chile, 72 FR 
70295, 70297 (December 11, 2007).
    \15\ See Statement of Administrative Action accompanying the 
Uruguay Round Agreements Act, H.R. Doc. No. 103-316, Vol. 1 (1994) 
(SAA) at 870.
    \16\ See Antidumping Duties; Countervailing Duties; Final Rule, 
62 FR at 27340; see also Nippon Steel Corp. v. United States, 337 
F.3d 1373, 1382-83 (Fed. Cir. 2003).
    \17\ See, e.g., Stainless Steel Sheet and Strip in Coils From 
Japan: Preliminary Results of Antidumping Duty Administrative 
Review, 70 FR 18369 (April 11, 2005), unchanged in Stainless Steel 
Sheet and Strip in Coils from Japan: Final Results of Antidumping 
Duty Administrative Review, 70 FR 37759 (June 30, 2005) (KSC/JFE's 
counsel contacted the Department to state that KSC/JFE would not be 
submitting a response to the Department's antidumping 
questionnaire).

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[[Page 46404]]

Corroboration of Secondary Information Used as Adverse Facts Available

    Where the Department applies adverse facts available (AFA) because 
a respondent failed to cooperate by not acting to the best of its 
ability to comply with a request for information, section 776(b) of the 
Act authorizes the Department to rely on information derived from the 
petition, a final determination, a previous administrative review, or 
other information placed on the record. See also 19 CFR 351.308(c) and 
the SAA at 868-870. In selecting a rate for AFA, the Department selects 
a rate that is sufficiently adverse to ensure that the uncooperative 
party does not obtain a more favorable result by failing to cooperate 
than if it had fully cooperated. Normally, it is the Department's 
practice to use the highest rate from the petition in an investigation 
when a respondent fails to act to the best of its ability to provide 
the necessary information.\18\ The rates in the petition, as adjusted 
at initiation, range from 27.21 percent to 72.41 percent. See 
Initiation Notice, 77 FR at 4011.
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    \18\ See, e.g., Notice of Preliminary Determination of Sales at 
Less Than Fair Value and Postponement of Final Determination: 
Purified Carboxymethylcellulose From Finland, 69 FR 77216 (December 
27, 2004), unchanged in Notice of Final Determination of Sales at 
Less Than Fair Value: Purified Carboxymethylcellulose From Finland, 
70 FR 28279 (May 17, 2005).
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    When using facts otherwise available, section 776(c) of the Act 
provides that, where the Department relies on secondary information 
(such as the petition) rather than information obtained in the course 
of an investigation, it must corroborate, to the extent practicable, 
information from independent sources that are reasonably at its 
disposal. The SAA clarifies that ``corroborate'' means the Department 
will satisfy itself that the secondary information to be used has 
probative value. See SAA at 870. To corroborate secondary information, 
the Department will examine, to the extent practicable, the reliability 
and relevance of the information used.\19\ The Department's regulations 
state that independent sources used to corroborate such evidence may 
include, for example, published prices lists, official import 
statistics and customs data, and information obtained from interested 
parties during the particular investigation. See 19 CFR 351.308(d) and 
the SAA at 870.
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    \19\ See Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or 
Less in Outside Diameter, and Components Thereof, From Japan: 
Preliminary Results of Antidumping Duty Administrative Reviews and 
partial Termination of Administrative Reviews, 62 FR 57391, 57392 
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, From Japan, and Tapered Roller 
Bearings, Four Inches or Less in Outside Diameter, and Components 
Thereof, From Japan: Final Results of Antidumping Administrative 
Reviews and Termination in Part, 62 FR 11825 (March 13, 1997).
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    For the purposes of this investigation and to the extent 
appropriate information was available, we reviewed the adequacy and 
accuracy of the information in the petition during our pre-initiation 
analysis and for purposes of this preliminary determination. See 
Antidumping Investigation Initiation Checklist, dated January 19, 2012 
(Initiation Checklist), at 6 through 11. See also Initiation Notice, 77 
FR at 4010--4011. We examined evidence supporting the calculations in 
the petition to determine the probative value of the margins alleged in 
the petition for use as AFA for purposes of this preliminary 
determination. During our pre-initiation analysis we examined the key 
elements of the U.S. price and normal value (NV) calculations used in 
the petition to derive margins. During our pre-initiation analysis we 
also examined information from various independent sources provided 
either in the petition or in supplements to the petition that 
corroborates key elements of the U.S. price and NV calculations used in 
the petition to derive estimated margins. Id.
    We have selected the petition rate of 72.41 percent (as adjusted at 
initation) as the appropriate AFA rate to apply in this case. This rate 
achieves the purpose of applying an adverse inference, i.e., it is 
sufficiently adverse to ensure that the uncooperative party does not 
obtain a more favorable result by failing to cooperate than if it had 
fully cooperated.\20\
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    \20\ See KYD, Inc. v. United States, 607 F.3d 760, 767 (Fed. 
Cir. 2010).
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    Based on our examination of the information, as discussed in detail 
in the Initiation Checklist and the Initiation Notice, we consider the 
petitioner's calculation of the U.S. price and NV underlying the 72.41 
percent rate to be reliable. Therefore, because we confirmed the 
accuracy and validity of the information underlying the calculation of 
margins in the petition by examining source documents as well as 
publicly available information, we preliminarily determine that the 
72.41 percent margin is reliable for purposes of this investigation.
    With respect to the relevance aspect of corroboration, the 
Department will consider information reasonably at its disposal to 
determine whether a margin continues to have relevance. Where 
circumstances indicate that the selected margin is not appropriate as 
AFA, the Department will disregard the margin and determine an 
appropriate margin.\21\ Similarly, the Department does not apply a 
margin that has been discredited or judicially invalidated.\22\
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    \21\ For example, in Fresh Cut Flowers From Mexico; Final 
Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 
(February 22, 1996), the Department disregarded the highest margin 
in that case as best information available (the predecessor to facts 
available), because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin.
    \22\ See D & L Supply Co. v. United States, 113 F.3d 1220, 1221 
(Fed. Cir. 1997).
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    The 72.41 percent rate reflects commercial practices of the washer 
industry and, as such, is relevant to Samsung and Whirlpool. The courts 
have acknowledged that the consideration of the commercial behavior 
inherent in the industry is important in determining the relevance of 
the selected AFA rate to the uncooperative respondent by virtue of it 
belonging to the same industry.\23\ Such consideration typically 
encompasses the commercial behavior of other respondents under 
investigation and the selected AFA rate is gauged against the margins 
we calculate for those respondents. Therefore, we compared the model-
specific margins we calculated for Electrolux for the POI to the 
adjusted petition rate of 72.41 percent. We found margins calculated 
for Electrolux in this investigation in the range of and above the 
72.41 percent petition margin. See memorandum entitled ``Corroboration 
of Secondary Information Used as Adverse Facts Available,'' dated 
concurrently with this notice. Accordingly, the AFA rate is relevant as 
applied to Samsung and Whirlpool for this investigation because it 
falls within the range of model-specific margins we calculated for 
Electrolux in this investigation. A similar corroboration methodology 
has been upheld by the Court of Appeals for the Federal Circuit.\24\ 
Further, this methodology is consistent with our past practice.\25\
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    \23\ See, e.g., Ferro Union, Inc. v. United States, 44 F. Supp. 
2d 1310, 1334 (1999).
    \24\ See PAM, S.p.A. v. United States, 582 F.3d 1336, 1340 (Fed. 
Cir. 2009).
    \25\ See Narrow Woven Ribbons With Woven Selvedge From the 
People's Republic of China: Final Determination of Sales at Less 
Than Fair Value, 75 FR 41808, 41811 (July 19, 2010).

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[[Page 46405]]

    Accordingly, we have determined that the AFA rate of 72.41 percent 
is corroborated to the extent practicable as provided in section 776(c) 
of the Act. See also 19 CFR 351.308(d). Therefore, with respect to 
Samsung and Whirlpool, we have used, as AFA, the adjusted petition 
margin of 72.41 percent.

Targeted Dumping Allegation

    The statute allows the Department to employ the average-to-
transaction margin-calculation methodology under the following 
circumstances: (1) There is a pattern of export prices that differ 
significantly among purchasers, regions, or periods of time; and (2) 
the Department explains why such differences cannot be taken into 
account using the average-to-average or transaction-to-transaction 
methodology. See section 777A(d)(1)(B) of the Act.
    On June 11, 2012, the petitioner submitted an allegation of 
targeted dumping with respect to Electrolux and asserted that the 
Department should apply the average-to-transaction methodology in 
calculating the margin for Electrolux. In its allegation, the 
petitioner asserted that there are patterns of U.S. sales prices for 
comparable merchandise that differ significantly among time periods, 
customers, and regions. See the Petitioner's Allegations of Targeted 
Dumping submission, dated June 11, 2012, at 3-6.\26\
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    \26\ The petitioner relied on the Department's targeted dumping 
test in Certain Steel Nails from the United Arab Emirates: Notice of 
Final Determination of Sales at Not Less Than Fair Value, 73 FR 
33985 (June 16, 2008), and Certain Steel Nails from the People's 
Republic of China: Final Determination of Sales at Less Than Fair 
Value and Partial Affirmative Determination of Critical 
Circumstances, 73 FR 33977 (June 16, 2008) (collectively Nails), as 
applied in more recent investigations such as Notice of Final 
Determination of Sales at Less Than Fair Value and Affirmative 
Critical Circumstances Determination: Bottom Mount Combination 
Refrigerator-Freezers From Mexico, 77 FR 17422 (March 26, 2012) 
(Refrigerators).
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A. Targeted Dumping Test

    We conducted time-period, customer, and regional targeted dumping 
analyses for Electrolux using the methodology we adopted in Nails and 
recently articulated in Multilayered Wood Flooring From the People's 
Republic of China: Final Determination of Sales at Less Than Fair 
Value, 76 FR 64318 (October 18, 2011) (Wood Flooring) and accompanying 
Issues and Decision Memorandum at Comment 4, and Refrigerators.
    The methodology we employed involves a two-stage test; the first 
stage addresses the pattern requirement and the second stage addresses 
the significant-difference requirement. See section 777A(d)(1)(B)(i) of 
the Act, Nails, Wood Flooring, and Refrigerators. In this test we made 
all price comparisons on the basis of identical merchandise (i.e., by 
control number or CONNUM). We based all of our targeted dumping 
calculations on the U.S. net price which we determined for U.S. sales 
by Electrolux in our standard margin calculation. For further 
discussion of the test and results, see memorandum entitled 
``Preliminary Determination Margin Calculation for Electrolux Home 
Products, Corp. N.V. and Electrolux Home Products De Mexico, S.A. de 
C.V.'' (Electrolux Calculation Memo), dated concurrently with this 
notice. As a result of our analysis, we preliminarily determine that 
there is a pattern of U.S. prices for comparable merchandise that 
differs significantly among certain time periods, customers, and 
regions for Electrolux, in accordance with section 777A(d)(1)(B)(i) of 
the Act and our current practice as discussed in Nails, Wood Flooring, 
and Refrigerators.

B. Price Comparison Method

    Section 777A(d)(1)(B)(ii) of the Act states that the Department may 
compare the weighted average of the NV to export prices (EPs) (or 
constructed export prices (CEPs)) of individual transactions for 
comparable merchandise if the Department explains why differences in 
the patterns of EPs (or CEPs) cannot be taken into account using the 
average-to-average methodology. As described above, we preliminarily 
determine that, with respect to sales by Electrolux, for certain time 
periods, customers, and regions there was a pattern of prices that 
differed significantly.
    For Electrolux, we find that these differences can be taken into 
account using the average-to-average methodology because the average-
to-average methodology does not conceal differences in the patterns of 
prices between the targeted and non-targeted groups by averaging low-
priced sales to the targeted group with high-priced sales to the non-
targeted group. Therefore, for the preliminary determination, we find 
that the standard average-to-average methodology takes into account the 
price differences because the alternative average-to-transaction 
methodology yields no material difference in the margin. Accordingly, 
for this preliminary determination we have applied the standard 
average-to-average methodology to all U.S. sales made by Electrolux. 
See the Electrolux Calculation Memo for further discussion.
Fair Value Comparisons
    To determine whether sales of washers from Mexico to the United 
States were made at LTFV, we compared the CEP to the NV, as described 
in the ``Constructed Export Price'' and ``Normal Value'' sections of 
this notice, below. In accordance with section 777A(d)(1)(A)(i) of the 
Act, we compared weighted average CEPs to weighted-average NVs for 
Electrolux. See ``Targeted Dumping Allegations'' section, above.

Product Comparisons

    In accordance with section 771(16) of the Act, we considered all 
products produced and sold by Electrolux in the third country, Canada, 
during the POI that fit the description in the ``Scope of 
Investigation'' section of this notice to be foreign like products for 
purposes of determining appropriate product comparisons to U.S. sales. 
We compared U.S. sales to sales made in the third country (Canadian) 
market, where appropriate. See ``Home Market Viability'' section of the 
notice for further discussion. Where there were no sales of identical 
merchandise in the Canadian market made in the ordinary course of trade 
to compare to U.S. sales, we compared U.S. sales to sales of the most 
similar foreign like product made in the ordinary course of trade.
    In making product comparisons, we matched foreign like products 
based on the physical characteristics reported by Electrolux in the 
following order of importance: finished unit or subassembly; load, 
agitator and axis type; capacity measurement; drying system; finish; 
user interface display; specialty cycle; door/lid material; motor type; 
water heater; and shoecare function.

Constructed Export Price

    For all U.S. sales made by Electrolux we calculated CEP in 
accordance with section 772(b) of the Act because the subject 
merchandise was first sold (or agreed to be sold) in the United States 
after the date of importation by or for the account of the producer or 
exporter, or by a seller affiliated with the producer or exporter, to a 
purchaser not affiliated with the producer or exporter.
    We based CEP on the packed prices to unaffiliated purchasers in the 
United States. We used the earlier of shipment or invoice date as the 
date of sale for

[[Page 46406]]

Electrolux's CEP sales, in accordance with our practice.\27\
---------------------------------------------------------------------------

    \27\ See, e.g., Certain Frozen Warmwater Shrimp from Thailand: 
Final Results and Final Partial Rescission of Antidumping Duty 
Administrative Review, 72 FR 52065 (September 12, 2007), and 
accompanying Issues and Decision Memorandum at Comment 11.
---------------------------------------------------------------------------

    We adjusted the starting price by the amount of billing adjustments 
reported by Electrolux. We made deductions for rebates and discounts, 
as appropriate. We also made deductions for movement expenses, in 
accordance with section 772(c)(2)(A) of the Act; these expenses 
included, where appropriate, foreign inland freight, foreign customs 
fees, foreign and U.S. inland insurance, U.S. inland freight (i.e., 
freight from factory to warehouse and freight from warehouse to the 
customer), and pre-sale warehousing expenses. In accordance with 
section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those 
selling expenses associated with economic activities occurring in the 
United States, including direct selling expenses (i.e., imputed credit 
expenses, advertising expenses, and warranty expenses), and indirect 
selling expenses (including inventory carrying costs). See the 
Electrolux Calculation Memo.
    Pursuant to section 772(d)(3) of the Act, we further reduced the 
starting price by an amount for profit to arrive at CEP. In accordance 
with section 772(f) of the Act, we calculated the CEP profit rate using 
the expenses incurred by Electrolux on its sales of the subject 
merchandise in the United States and the profit associated with those 
sales.

Normal Value

A. Home Market Viability

    In order to determine whether there is a sufficient volume of sales 
in the home market to serve as a viable basis for calculating NV (i.e., 
the aggregate volume of home market sales of the foreign like product 
is equal to or greater than five percent of the aggregate volume of 
U.S. sales), we compared Electrolux's volume of home market sales of 
the foreign like product to the volume of U.S. sales of the subject 
merchandise, in accordance with sections 773(a)(1)(A) and (B) of the 
Act.
    In this investigation, we determined that Electrolux's aggregate 
volume of home market sales of the foreign like product was 
insufficient to permit a proper comparison with U.S. sales of the 
subject merchandise. Therefore, we used sales to Canada, Electrolux's 
largest third country market, comprised of merchandise that is similar 
and/or identical to the subject merchandise exported to the United 
States, as the basis for comparison market sales in accordance with 
section 773(a)(1)(C) of the Act and 19 CFR 351.404.

B. Affiliated Party Transactions and Arm's-Length Test

    During the POI, Electrolux sold foreign like product to affiliated 
customers. To test whether Electrolux's sales to affiliated customers 
were made at arm's-length prices, we compared, on a product-specific 
basis, the starting prices of sales to affiliated and unaffiliated 
customers, net of all applicable billing adjustments, discounts and 
rebates, movement charges, direct selling expenses and packing 
expenses. Where the price to the affiliated party was, on average, 
within a range of 98 to 102 percent of the price of the same or 
comparable merchandise sold to unaffiliated parties, we determined that 
sales made to the affiliated party were at arm's length. See 19 CFR 
351.403(c).\28\ Sales to affiliated customers in the comparison market 
that were not made at arm's-length prices were excluded from our 
analysis because we considered them to be outside the ordinary course 
of trade. See section 771(15) of the Act and 19 CFR 351.102(b).
---------------------------------------------------------------------------

    \28\ See Stainless Steel Sheet and Strip in Coils From Japan: 
Preliminary Results of Antidumping Duty Administrative Review, 74 FR 
39615 (August 7, 2009), unchanged in Stainless Steel Sheet and Strip 
in Coils form Japan: Final Results of Antidumping Duty 
Administrative Review, 75 FR 6631 (February 10, 2010).
---------------------------------------------------------------------------

C. Level of Trade

    Section 773(a)(1)(B)(i) of the Act states that, to the extent 
practicable, the Department will calculate NV based on sales at the 
same level of trade (LOT) as the EP or CEP. Sales are made at different 
LOTs if they are made at different marketing stages (or their 
equivalent). See 19 CFR 351.412(c)(2). Substantial differences in 
selling activities are a necessary, but not sufficient, condition for 
determining that there is a difference in the stages of marketing.\29\ 
In order to determine whether the comparison market sales were at 
different stages in the marketing process than the U.S. sales, we 
reviewed the distribution system in each market (i.e., the chain of 
distribution), including selling functions, class of customer (customer 
category), and the level of selling expenses for each type of sale.
---------------------------------------------------------------------------

    \29\ Id; see also Certain Orange Juice from Brazil: Final 
Results of Antidumping Duty Administrative Review and Notice of 
Intent to Revoke Antidumping Duty Order in Part, 75 FR 50999, 51001 
(August 18, 2010) (OJ from Brazil) and accompanying Issues and 
Decision Memorandum at Comment 7.
---------------------------------------------------------------------------

    Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs 
for EP and comparison market sales (i.e., NV based on either home 
market or third country prices),\30\ we consider the starting prices 
before any adjustments. For CEP sales, we consider only the selling 
activities reflected in the price after the deduction of expenses and 
profit under section 772(d) of the Act.\31\
---------------------------------------------------------------------------

    \30\ Where NV is based on CV, we determine the NV LOT based on 
the LOT of the sales from which we derive selling expenses, G&A 
expenses, and profit for CV, where possible.
    \31\ See Micron Tech., Inc. v. United States, 243 F.3d 1301, 
1314-16 (Fed. Cir. 2001).
---------------------------------------------------------------------------

    When the Department is unable to match U.S. sales of the foreign 
like product in the comparison market at the same LOT as the EP or CEP, 
the Department may compare the U.S. sale to sales at a different LOT in 
the comparison market. In comparing EP or CEP sales at a different LOT 
in the comparison market, where available data make it possible, we 
make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, 
for CEP sales only, if the NV LOT is at a more advanced stage of 
distribution than the LOT of the CEP and there is no basis for 
determining whether the difference in LOTs between NV and CEP affects 
price comparability (i.e., no LOT adjustment was possible), the 
Department shall grant a CEP offset, as provided in section 
773(a)(7)(B) of the Act.\32\
---------------------------------------------------------------------------

    \32\ See, e.g., OJ from Brazil, 75 FR at 51001.
---------------------------------------------------------------------------

    In this investigation, we obtained information from Electrolux 
regarding the marketing stages involved in making the reported 
comparison market and U.S. sales, including a description of the 
selling activities performed by each respondent for each channel of 
distribution. Our LOT finding is summarized below.
    Electrolux sold washers only to retailers and builders/wholesalers 
in both the Canadian and U.S. markets. Electrolux reported that it made 
CEP sales in the U.S. market through the following four channels of 
distribution: (1) The customer picks up the merchandise from its El 
Paso, Texas, warehouse; (2) its U.S. affiliate (i.e., Electrolux Major 
Appliances North America (UWA)) delivers the merchandise from the El 
Paso warehouse to the customer; (3) the customer picks up the 
merchandise from a UWA regional distribution center (RDC); and (4) UWA 
delivers the merchandise from the RDC to the customer. For purposes of 
examining the different selling activities reported by Electrolux for 
sales made through

[[Page 46407]]

each U.S. channel of distribution, we grouped the selling activities 
into four selling function categories for analysis: (1) Sales and 
marketing; (2) freight and delivery services; (3) inventory maintenance 
and warehousing; and (4) warranty and technical support.
    We compared the selling activities Electrolux performed in each 
channel, exclusive of the selling activities performed by its U.S. 
affiliate, and found that either there is no difference in the selling 
functions performed by Electrolux between the channels (i.e., freight 
and delivery services) or Electrolux did not perform the selling 
function at all (i.e., sales and marketing, inventory maintenance and 
warehousing, and warranty and technical support) for each channel. As a 
result, we found that Electrolux performed the same selling functions 
for all four U.S. distribution channels. Accordingly, we determined 
that all of Electrolux's CEP sales constitute one LOT.
    With respect to the Canadian market, Electrolux reported the 
following three channels of distribution: (1) Its Canadian affiliate 
(i.e., Electrolux Canada Corp. (CDW)) arranges with UWA to have the 
merchandise delivered from the El Paso warehouse to CDW's customer; (2) 
the customer picks up the merchandise from CDW's RDC; and (3) CDW 
delivers the merchandise from the RDC to the customer. In determining 
whether separate LOTs exist in the Canadian market, we compared the 
selling functions performed by Electrolux and its affiliates CDW and 
UWA on behalf of the Canadian sales. For purposes of examining the 
different selling activities reported by Electrolux and its affiliates 
for sales made through each Canadian channel of distribution, we 
grouped the selling activities into four selling function categories 
for analysis: (1) Sales and marketing; (2) freight and delivery 
services; (3) inventory maintenance and warehousing; and (4) warranty 
and technical support.
    We compared the selling activities Electrolux and its affiliates 
collectively performed in each channel, and found that there is no 
difference in the selling functions performed between the channels. As 
a result, we found that Electrolux performed the same selling functions 
for all three Canadian market distribution channels. Accordingly, we 
determined that all Canadian sales constitute one LOT.
    Finally, we compared the CEP LOT to the Canadian market LOT and 
found that the selling functions performed for Canadian market sales 
are either not performed for CEP sales or are performed at a 
significantly higher degree of intensity compared to the selling 
functions performed for U.S. sales. Specifically, we found that three 
of the four selling functions (i.e., sales and marketing, inventory 
maintenance and warehousing, and warranty and technical support) are 
performed by Electrolux in the Canadian market but not in the U.S. 
market, and the remaining selling function (i.e., freight and delivery 
services) was performed by Electrolux in the Canadian market at a 
higher degree of intensity than in the U.S. market. Therefore, we 
determined that the NV LOT is at a more advanced stage of distribution 
than the CEP LOT and that no LOT adjustment was possible. Accordingly, 
we granted a CEP offset pursuant to section 773(a)(7)(B) of the Act.

D. Cost of Production Analysis

    Because Electrolux did not have a viable home market, on May 21, 
2012, the petitioner alleged that it made third country sales below the 
COP and, therefore, requested that the Department initiate a sales-
below-cost investigation. On June 5, 2012, the Department initiated a 
sales-below-cost investigation of Electrolux. See memorandum entitled 
``The Petitioner's Allegation of Sales below the Cost of Production for 
Electrolux Home Products, Corp. N.V. and Electrolux Home Products, 
Inc.,'' dated June 5, 2012.
1. Calculation of COP
    In accordance with section 773(b)(3) of the Act, we calculated COP 
based on the sum of the cost of materials and fabrication for the 
foreign like product, plus an amount for general and administrative 
expenses, interest expenses, and comparison market packing costs. See 
``Test of Comparison Market Sales Prices'' section below for treatment 
of comparison market selling expenses. Based on the review of record 
evidence, Electrolux did not appear to experience significant changes 
in the cost of manufacturing during the POI. Therefore, we followed our 
normal methodology of calculating an annual weighted-average cost.
    We relied on Electrolux's submitted COP data but adjusted this data 
to account for labor and overhead provided by affiliated parties at 
transfer prices, in accordance with section 773(f)(2) of the Act. See 
memorandum entitled ``Cost of Production and Constructed Value 
Adjustments for the Preliminary Determination--Electrolux Home 
Products, Corp. N.V. and Electrolux Home Products, Inc.,'' dated July 
27, 2012, for further discussion.
2. Test of Comparison Market Sales Prices
    On a product-specific basis, we compared the adjusted weighted-
average COP to the comparison market sales of the foreign like product, 
as required under section 773(b) of the Act, in order to determine 
whether the sale prices were below the COP. The prices were exclusive 
of any applicable billing adjustments, discounts and rebates, movement 
charges, and actual direct and indirect selling expenses. In 
determining whether to disregard comparison market sales made at prices 
less than their COP, we examined, in accordance with sections 
773(b)(1)(A) and (B) of the Act, whether such sales were made (1) 
within an extended period of time in substantial quantities, and (2) at 
prices which permitted the recovery of all costs within a reasonable 
period of time.
3. Results of the COP Test
    Pursuant to section 773(b)(2)(C) of the Act, where less than 20 
percent of the respondent's sales of a given product during the POI are 
at prices less than the COP, we do not disregard any below-cost sales 
of that product, because we determine that in such instances the below-
cost sales were not made in substantial quantities. Where 20 percent or 
more of the respondent's sales of a given product during the POI are at 
prices less than the COP, we disregard those sales of that product, 
because we determine that in such instances the below-cost sales 
represent substantial quantities within an extended period of time, in 
accordance with section 773(b)(1)(A) of the Act. In such cases, we also 
determine whether such sales were made at prices which would not permit 
recovery of all costs within a reasonable period of time, in accordance 
with section 773(b)(1)(B) of the Act.
    We found that, for certain specific products, more than 20 percent 
of Electrolux's comparison market sales during the POI were at prices 
less than the COP and, in addition, the below-cost sales did not 
provide for the recovery of costs within a reasonable period of time. 
We therefore excluded these sales and used the remaining sales, if any, 
as the basis for determining NV, in accordance with section 773(b)(1) 
of the Act.

E. Calculation of Normal Value Based on Comparison Market Prices

    We calculated NV based on packed prices to unaffiliated customers. 
We made deductions, where appropriate, from the starting price for 
discounts, rebates, and billing adjustments. We also made deductions 
for movement

[[Page 46408]]

expenses, including inland freight, customs fees, brokerage and 
handling, insurance, and warehousing expenses, under section 
773(a)(6)(B)(ii) of the Act. We offset movement expenses, where 
appropriate, by the amount of freight revenue received by Electrolux. 
Consistent with our practice, we capped the amount of freight revenue 
allowed as an offset by the amount of the freight expense incurred.\33\ 
In accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 
351.410, we deducted from NV direct selling expenses (i.e., warranty 
and advertising expenses).
---------------------------------------------------------------------------

    \33\ See, e.g., OJ from Brazil and accompanying Issues and 
Decision Memorandum at Comment 2.
---------------------------------------------------------------------------

    Furthermore, we made adjustments for differences in costs 
attributable to differences in the physical characteristics of the 
merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 
19 CFR 351.411. We also deducted third country packing costs and added 
U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of 
the Act.
    Finally, we made a CEP offset pursuant to section 773(a)(7)(B) of 
the Act and 19 CFR 351.412(f). We calculated the CEP offset as the 
lesser of the indirect selling expenses on the comparison market sales 
or the indirect selling expenses deducted from the starting price in 
calculating CEP. See the Electrolux Calculation Memorandum.

Currency Conversion

    We made currency conversions into U.S. dollars in accordance with 
section 773A(a) of the Act based on the exchange rates in effect on the 
dates of the U.S. sales as certified by the Federal Reserve Bank.

Verification

    As provided in section 782(i) of the Act, we will verify 
information relied upon in making our final determination.

Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, we are directing 
CBP to suspend liquidation of all imports of subject merchandise from 
Electrolux, Samsung, Whirlpool, and ``All Others'' that are entered, or 
withdrawn from warehouse, for consumption on or after the date of 
publication of this notice in the Federal Register.
    We will instruct CBP to require a cash deposit\34\ equal to the 
weighted-average amount by which the NV exceeds CEP, as indicated in 
the chart below. These suspension-of-liquidation instructions will 
remain in effect until further notice.
---------------------------------------------------------------------------

    \34\ See Modification of Regulations Regarding the Practice of 
Accepting Bonds During the Provisional Measures Period in 
Antidumping and Countervailing Duty Investigations, 76 FR 61042 
(October 3, 2011).
---------------------------------------------------------------------------

    The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                       Weighted-Average
               Exporter/manufacturer                  margin  percentage
------------------------------------------------------------------------
Electrolux Home Products, Corp. NV/Electrolux Home                33.30
 Products De Mexico, S.A. de C.V...................
Samsung Electronics Mexico S.A. de C.V.............               72.41
Whirlpool International S. de R.L. de C.V..........               72.41
All Others.........................................               33.30
------------------------------------------------------------------------

    The ``All Others'' rate is derived exclusive of all de minimis or 
zero margins and margins based entirely on AFA. Specifically, this rate 
is based on the margin calculated for Electrolux in this case.

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of our determination. If our final determination is affirmative, 
the ITC will determine before the later of 120 days after the date of 
this preliminary determination or 45 days after our final determination 
whether these imports are materially injuring, or threaten material 
injury to, the U.S. industry.

Disclosure

    The Department will disclose to parties the calculations performed 
in connection with this preliminary determination within five days of 
the date of publication of this notice. See 19 CFR 351.224(b).

Public Comment

    Case briefs for this investigation must be submitted to the 
Department no later than seven days after the date of the final 
verification report issued in this proceeding. Rebuttal briefs must be 
filed five days from the deadline date for case briefs. See 19 CFR 
351.309(d). A list of authorities used, a table of contents, and an 
executive summary of issues should accompany any briefs submitted to 
the Department. Executive summaries should be limited to five pages 
total, including footnotes. Case briefs must present all arguments that 
continue to be relevant to the Department's final determination, in the 
submitter's view. See 19 CFR 351.309(c)(2). Section 774 of the Act 
provides that the Department will hold a public hearing to afford 
interested parties an opportunity to comment on arguments raised in 
case or rebuttal briefs, provided that such a hearing is requested by 
an interested party. See 19 CFR 351.310(c). If a request for a hearing 
is made in this investigation, the hearing will tentatively be held two 
days after the rebuttal brief deadline date at the U.S. Department of 
Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230. 
Parties should confirm by telephone the time, date, and place of the 
hearing 48 hours before the scheduled time.
    Interested parties who wish to request a hearing, or to participate 
if one is requested, must submit a written request to the Assistant 
Secretary for Import Administration, U.S. Department of Commerce, 
within 30 days of the publication of this notice. Requests should 
contain: (1) The party's name, address, and telephone number; (2) the 
number of participants; and (3) a list of the issues to be discussed. 
Oral presentations will be limited to issues raised in the briefs.
    We will make our final determination no later than 135 days after 
the publication of this notice in the Federal Register.
    This determination is published pursuant to sections 733(f) and 
777(i) of the Act and 19 CFR 351.205(c).

    Dated: July 27, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-19054 Filed 8-2-12; 8:45 am]
BILLING CODE 3510-DS-P