[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Notices]
[Pages 24572-24575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10583]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-962]
Certain Potassium Phosphate Salts from the People's Republic of
China: Preliminary Affirmative Determination of Critical Circumstances
in the Antidumping Duty Investigation
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
DATES: Effective Date: May 5, 2010.
FOR FURTHER INFORMATION CONTACT: Irene Gorelik at (202) 482-6905, AD/
CVD Operations, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230.
Background
On March 16, 2010, the Department of Commerce (``Department'')
published its preliminary determination in the antidumping duty
investigation of certain potassium phosphate salts (``salts'') from the
People's Republic of China (``PRC''). See Certain Potassium Phosphate
Salts From the People's Republic of China: Preliminary Determination of
Sales at Less Than Fair Value, 75 FR 12508 (March 16, 2010)
(``Preliminary Determination'').
On April 2, 2010, Petitioners \1\ filed a timely critical
circumstances allegation, pursuant to 19 CFR 351.206, alleging that
critical circumstances exist with respect to imports of the merchandise
under consideration.
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\1\ ICL Performance Products LP and Prayon, Inc.
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In accordance with 19 CFR 351.206(c)(1), when a critical
circumstances allegation is filed 30 days or more before the scheduled
date of the final determination (as was done in this case), the
Department will issue a preliminary finding whether there is a
reasonable basis to believe or suspect that critical circumstances
exist. Because the critical circumstances allegation in this case was
submitted after the preliminary determination was published, the
Department must issue
[[Page 24573]]
our preliminary findings of critical circumstances not later than 30
days after the allegation was filed. See 19 CFR 351.206(c)(2)(ii).
Legal Framework
Section 733(e)(1) of the Tariff Act of 1930, as amended (``Act''),
provides that the Department, upon receipt of a timely allegation of
critical circumstances, will determine whether there is a reasonable
basis to believe or suspect that: (A)(i) there is a history of dumping
and material injury by reason of dumped imports in the United States or
elsewhere of the subject merchandise, or (ii) the person by whom, or
for whose account, the merchandise was imported knew or should have
known that the exporter was selling the subject merchandise at less
than its fair value and that there was likely to be material injury by
reason of such sales, and; (B) there have been massive imports of the
subject merchandise over a relatively short period.
Further, 19 CFR 351.206(h)(1) provides that, in determining whether
imports of the subject merchandise have been ``massive,'' the
Department normally will examine: (i) The volume and value of the
imports; (ii) seasonal trends; and (iii) the share of domestic
consumption accounted for by the imports. In addition, 19 CFR
351.206(h)(2) provides that, ``{i{time} n general, unless the imports
during the `relatively short period' * * * have increased by at least
15 percent over the imports during an immediately preceding period of
comparable duration, the Secretary will not consider the imports
massive.'' 19 CFR 351.206(i) defines ``relatively short period''
generally as the period starting on the date the proceeding begins
(i.e., the date the petition is filed) and ending at least three months
later. This section of the regulations further provides that, if the
Department ``finds that importers, or exporters or producers, had
reason to believe, at some time prior to the beginning of the
proceeding, that a proceeding was likely,'' then the Department may
consider a period of not less than three months from that earlier time.
Allegation
In their allegation, Petitioners contend that, based on the dumping
margins assigned by the Department in the Preliminary Determination,
importers knew or should have known that the merchandise under
consideration was being sold at less than fair value (``LTFV'').
Petitioners also contend that, based on the preliminary determination
of injury by the U.S. International Trade Commission (``ITC''), there
is a reasonable basis to impute importers' knowledge that material
injury is likely by reason of such imports. In their allegation,
Petitioners included import statistics for the three different ``like
products'' covered by the scope of this investigation for the period
between June 2009 and January 2010. See Petitioners' Allegation, dated
April 2, 2010, at 10-11.
Analysis
The Department's normal practice in determining whether critical
circumstances exist pursuant to the statutory criteria has been to
examine evidence available to the Department, such as: (1) The evidence
presented in Petitioners' critical circumstances allegation; (2) import
statistics released by the ITC, and (3) shipment information submitted
to the Department by the respondents selected for individual
examination.\2\ Here, in determining whether the above statutory
criteria have been satisfied in this case, we examined: (1) The
evidence presented in Petitioners' April 2, 2010, allegation; and (2)
evidence obtained since the initiation of this investigation, and (3)
the ITC's preliminary injury determination.
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\2\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Affirmative Final Determination of Critical
Circumstances: Circular Welded Carbon Quality Steel Pipe from the
People's Republic of China, 73 FR 31970 (June 5, 2008) (``Carbon
Steel Pipe''); Final Determination of Sales at Less Than Fair Value
and Affirmative Determination of Critical Circumstances: Small
Diameter Graphite Electrodes from the People's Republic of China, 74
FR 2049 January 14, 2009) (``SDGE'').
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Section 733(e)(1)(A)(i) of the Act: History of Dumping and Material
Injury by Reason of Dumped Imports in the United States or Elsewhere of
the Subject Merchandise
In determining whether a history of dumping and material injury
exists, the Department generally has considered current or previous
antidumping duty orders on subject merchandise from the country in
question in the United States and current orders in any other country.
Id. In this case, the Department is not aware of any antidumping duty
order on subject merchandise from the PRC in any country. Therefore,
the Department finds no history of injurious dumping of subject
merchandise from the PRC pursuant to section 733(e)(1)(A)(i) of the
Act.
Section 733(e)(1)(A)(ii): The Importer Knew or Should Have Known That
Exporter Was Selling at Less Than Fair Value and That There Was Likely
To Be Material Injury
In determining whether an importer knew or should have known that
the exporter was selling subject merchandise at LTFV and that there was
likely to be material injury by reason of such sales, the Department
must rely on the facts before it at the time the determination is made.
The Department generally bases its decision with respect to knowledge
on the margins calculated in the preliminary determination and the
ITC's preliminary injury determination.
The Department normally considers margins of 25 percent or more for
export price sales and 15 percent or more for constructed export price
sales sufficient to impute importer knowledge of sales at LTFV.\3\ The
Department preliminarily determined margins of 69.58 percent for the
non-selected separate-rate applicants and 95.40 percent for the PRC-
wide entity, which includes the mandatory respondents. Therefore, as we
preliminarily determined margins greater than 25 percent for all
producers and exporters, we preliminarily find, with respect to all
producers and exporters, that there is a reasonable basis to believe or
suspect that importers knew, or should have known, that exporters were
selling subject merchandise at LTFV.
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\3\ See, e.g., Carbon and Alloy Steel Wire Rod From Germany,
Mexico, Moldova, Trinidad and Tobago, and Ukraine: Preliminary
Determination of Critical Circumstances, 67 FR 6224, 6225 (February
11, 2002); Affirmative Preliminary Determination of Critical
Circumstances: Magnesium Metal from the People's Republic of China,
70 FR 5606 (February 3, 2005).
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In determining whether an importer knew or should have known that
there was likely to be material injury caused by reason of such
imports, the Department normally will look to the preliminary injury
determination of the ITC. If the ITC finds a reasonable indication of
present material injury to the relevant U.S. industry, the Department
will determine that a reasonable basis exists to impute importer
knowledge that material injury is likely by reason of such imports.\4\
Here, the ITC found that that ``there is a reasonable indication that
an industry producing monopotassium phosphate
[[Page 24574]]
(``MKP''), is materially injured or threatened with material injury.''
\5\ The ITC also found that ``there is a reasonable indication that
industries producing dipotassium phosphate (`DKP') and tetrapotassium
pyrophosphate (`TKPP'), are threatened with material injury.'' Id.
Where the ITC finds threat of material injury, the Department also
considers such factors as: (1) The extent of the increase in the volume
of imports of the subject merchandise during the critical circumstances
period and (2) the magnitude of the dumping margins in determining
whether a reasonable basis exists to impute knowledge that material
injury was likely.\6\ In this case, import volume data from ITC's
Dataweb shows an increase of 86.1 percent in salts imports from the PRC
during the comparison period, more than five times the increase needed
to find massive imports. See Petitioners' Allegation at 10.
Furthermore, the preliminary dumping margins are significantly greater
than 25 percent. Therefore, the Department preliminarily finds that
there is a reasonable basis to believe or suspect that importers knew
or should have known that there was likely to be material injury by
reason of sales at LTFV of subject merchandise from the PRC.
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\4\ See, e.g., Carbon and Alloy Steel Wire Rod From Germany,
Mexico, Moldova, Trinidad and Tobago, and Ukraine: Preliminary
Determination of Critical Circumstances, 67 FR 6224, 6225 (February
11, 2002); Affirmative Preliminary Determination of Critical
Circumstances: Magnesium Metal from the People's Republic of China,
70 FR 5606 (February 3, 2005).
\5\ See Investigation Nos. 701-TA-473 and 731-TA-1173
(Preliminary) Certain Sodium and Potassium Phosphate Salts From
China, 74 FR 61173 (November 23, 2009) (``ITC Prelim'').
\6\ See, e.g., Notice of Final Antidumping Duty Determination of
Sales at Less Than Fair Value and Affirmative Critical
Circumstances: Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam, 68 FR 37116 (June 23, 2003); Notice of Final
Determination of Sales at Less Than Fair Value: Hot-Rolled Flat-
Rolled Carbon-Quality Steel Products from Japan, 64 FR 24329 (May 6,
1999) at Comment 2 (where the Department considered other sources of
information, including press reports regarding rising imports,
falling domestic prices resulting from rising imports and domestic
buyers shifting to foreign suppliers).
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Section 733(e)(1)(B): Whether There Have Been Massive Imports of the
Subject Merchandise Over a Relatively Short Period
Pursuant to 19 CFR 351.206(h)(2), the Department will not consider
imports to be massive unless imports in the comparison period have
increased by at least 15 percent over imports in the base period. The
Department normally considers a ``relatively short period'' as the
period beginning on the date the proceeding begins and ending at least
three months later. See 19 CFR 351.206(i). For this reason, the
Department normally compares the import volumes of the subject
merchandise for at least three months immediately preceding the filing
of the petition (i.e., the ``base period'') to a comparable period of
at least three months following the filing of the petition (i.e., the
``comparison period'').
In their April 2, 2010, allegation, Petitioners maintained that
importers, exporters, or foreign producers gained knowledge that this
proceeding was possible when the petition for an antidumping duty
investigation was filed on September 24, 2009. See Petitioners' April
2, 2010, submission at 5-9. Moreover, Petitioners noted that when a
petition is filed in the second half of a month, the month following
the filing is treated as part of the post-petition period. Petitioners
also included in their allegation U.S. import data collected from the
ITC's Dataweb. Based on this data, Petitioners provided data for a
four-month base period (June 2009 through September 2009) and a four-
month comparison period (October 2009 through January 2010) in showing
whether imports were massive.
Based on the date of the filing of the petition, i.e., September
24, 2009, which is in the second half of the month, the Department
agrees with Petitioners that October 2009 is the month in which
importers, exporters, or producers knew or should have known an
antidumping duty investigation was likely, and falls within the
comparison period. According to 19 CFR 351.206(i), the base and
comparison periods normally should be at least three months.
Adverse Facts Available (``AFA'')
In this investigation, the Department selected SD BNI(LYG) Co. Ltd.
(``SD BNI'') and Sichuan Blue Sword Import & Export Co., Ltd.
(``Sichuan Blue Sword'') as mandatory respondents in this
investigation.\7\ In the Preliminary Determination, the Department
determined that there were exporters/producers of the merchandise under
investigation during the POI from the PRC that did not respond to the
Department's request for information, including Sichuan Blue Sword, one
of the mandatory respondents. Therefore, we treated these PRC
exporters/producers, including Sichuan Blue Sword, as part of the PRC-
wide entity because they did not qualify for a separate rate. See
Preliminary Determination at 75 FR 12508, 12512. Further, information
on the record indicates that the PRC-wide entity was non-cooperative
because certain companies did not respond to our requests for
information. Id. As a result, pursuant to section 776(a)(2)(A) and
776(b) of the Act, we preliminarily found that the use of AFA was
warranted to determine the PRC-wide rate. Id. As AFA, we preliminarily
assigned to the PRC-wide entity a rate of 95.40 percent, which is the
highest margin alleged in the Petition. Id.
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\7\ See ``Memorandum to James C. Doyle, Director, Office IX,
from Katie Marksberry, Case Analyst, through Catherine Bertrand,
Program Manager, Office IX; regarding Antidumping Duty Investigation
of Certain Potassium Phosphate Salts from the People's Republic of
China,'' dated November 13, 2009.
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Furthermore, pursuant to sections 776(a)(2)(A), (B), and (C) and
776(b) of the Act, we preliminarily applied AFA to SD BNI, the other
mandatory respondent, because we found that the information necessary
to calculate an accurate and otherwise reliable margin is not available
on the record with respect to SD BNI. We preliminarily found that SD
BNI failed to provide the information requested by the Department in a
timely manner and in the form required, and significantly impeded the
Department's ability to calculate an accurate margin for SD BNI. The
Department was unable to calculate a margin without the necessary
information, requiring the application of facts otherwise available to
SD BNI for the purpose of the Preliminary Determination. Id. at 12513
Therefore, because SD BNI was selected as a mandatory respondent and
failed to submit the information required, SD BNI did not receive a
separate rate and remains part of the PRC-wide entity. Id.
PRC-Wide Entity
Because the PRC-wide entity did not respond to the Department's
antidumping questionnaire, we did not obtain shipment data from the
PRC-wide entity for purposes of our critical circumstances analysis and
therefore there is no verifiable information on the record with respect
to its export volumes. Section 776(a)(2) of the Act provides that, if
an interested party or any other person (A) withholds information that
has been requested by the administering authority or the Commission
under this title, (B) fails to provide such information by the
deadlines for submission of the information or in the form and manner
requested, subject to subsections (c)(1) and (e) of section 782, (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), the administering authority and the Commission shall,
subject to section 782(d), use the facts otherwise available in
reaching the applicable determination under this title.
Furthermore, section 776(b) of the Act provides that, if a party
has failed to act to the best of its ability, the Department
[[Page 24575]]
may apply an adverse inference. The PRC-wide entity did not respond to
the Department's request for information. Thus, we are using facts
available, in accordance with section 776(a) of the Act, and, pursuant
to section 776(b) of the Act, we also find that AFA is warranted so
that the PRC-wide entity does not obtain a more favorable result by
failing to cooperate than if it had fully cooperated. Accordingly, we
preliminarily find that there were massive imports of merchandise from
the PRC-wide entity.
Further, in some cases the Department has also considered the
import volume from the ITC Dataweb as further evidence supporting an
affirmative determination of critical circumstances based on AFA.\8\
Here, we find that the ITC Dataweb import statistics further support
the Department's determination that the volume of imports of subject
merchandise in the post-petition period are consistent with an AFA
finding that these imports were massive.
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\8\ See, e.g., Preliminary Determination of Critical
Circumstances: Certain Small Diameter Carbon and Alloy Seamless
Standard Pipe and Pressure Pipe from the Czech Republic, 65 FR 33803
(May 25, 2000) and Notice of Final Determination of Sales at Less
Than Fair Value: Certain Small Diameter Carbon and Alloy Seamless
Standard, Line, and Pressure Pipe from the Czech Republic, 65 FR
39363 (June 26, 2000) and accompanying Issues and Decision
Memorandum.
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Separate-Rate Applicants
Because it has been the Department's practice to conduct its
massive imports analysis of separate rate companies \9\ based on the
experience of investigated companies, we did not request monthly
shipment information from the three separate-rate applicants. However,
where mandatory respondents have received AFA, we have not imputed
those adverse inferences of massive imports to the non-individually
examined companies receiving a separate rate. Instead, the Department
has relied upon the ITC Dataweb import statistics where appropriate in
determining whether there have been massive imports for the separate-
rate companies. Accordingly, as the basis for determining whether
imports were massive for these separate-rate companies, we are relying
on ITC Dataweb import statistics as evidence that imports in the post-
petition period were massive for those companies. As stated above, in
this case, import volume data shows an increase of 86.1 percent of
salts imports from the PRC during the comparison period. See
Petitioners' Allegation at 10. Thus, pursuant to section 351.206(h) of
the Department's regulations, we determine that this increase, being
greater than 15 percent, shows that imports in the comparison period
were massive for the separate-rate companies.
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\9\ See, e.g., Carbon Steel Pipe and SDGE.
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Critical Circumstances
Record evidence indicates that importers of salts knew, or should
have known, that exporters were selling the merchandise at LTFV, and
that there was likely to be material injury by reason of such sales. In
addition, record evidence indicates that the PRC-wide entity and the
separate-rate applicants had massive imports during a relatively short
period. Therefore, in accordance with section 733(e)(1) of the Act, we
preliminarily find that there is reason to believe or suspect that
critical circumstances exist for imports of subject merchandise from
the PRC-wide entity (which includes SD BNI and Sichuan Blue Sword) and
the separate-rate companies (Snow-Apple Group Limited, Tianjin Chengyi
International Trading (Tianjin) Co., Limited, Wenda Co., Ltd., and
Yunnan Newswift Company Ltd.) in this antidumping duty investigation.
See section 733(f) of the Act and 19 CFR 351.206(c)(2)(ii).
Suspension of Liquidation
In accordance with section 703(e)(2)(A) of the Act, we are
directing CBP to suspend liquidation of any unliquidated entries of
subject merchandise from the PRC entered, or withdrawn from warehouse
for consumption, on or after December 16, 2009, which is 90 days prior
to the date of publication of the Preliminary Determination in the
Federal Register.
ITC Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of our preliminary determination.
Public Comment
Since this determination is being made subsequent to the due dates
for public comment as published in our notice of preliminary
determination of sales at LTFV, we will accept written comments limited
to this preliminary determination of critical circumstances if they are
submitted to the Assistant Secretary for Import Administration no later
than five days after the publication of this notice.
This determination is published pursuant to section 733(f) of the
Act and 19 CFR 351.206(c)(2)(ii).
Dated: April 29, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-10583 Filed 5-4-10; 8:45 am]
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