Notice of Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances: Glycine from Japan, 67271-67274 [E7-23127]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 72, Number 228 (Wednesday, November 28, 2007)]
[Notices]
[Pages 67271-67274]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23127]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-588-868]


Notice of Final Determination of Sales at Less Than Fair Value 
and Affirmative Final Determination of Critical Circumstances: Glycine 
from Japan

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

EFFECTIVE DATE: November 28, 2007.
SUMMARY: The Department of Commerce determines that imports of glycine 
from Japan are being, or are likely to be, sold in the United States at 
less than fair value, as provided in section 735 of the Tariff Act of 
1930, as amended (the Act). The final weighted-average dumping margins 
are listed below in the section entitled ``Final Determination of 
Investigation.'' In addition, the Department of Commerce has determined 
that critical circumstances exist with respect to imports of glycine 
from Japan.

FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov or Richard 
Rimlinger, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-0665 or (202) 482-4477, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On September 13, 2007, the Department of Commerce (the Department) 
published the preliminary determination of sales at less than fair 
value (LTFV) in the antidumping investigation of glycine from Japan. 
See Notice of Preliminary Determination of Sales at Less Than Fair 
Value: Glycine from Japan, 72 FR 52349 (September 13, 2007) 
(Preliminary Determination). We invited parties to comment on 
Preliminary Determination. We did not receive any case or rebuttal 
briefs from any interested parties. On October 25, 2007, the petitioner 
in this investigation, Geo Specialty Chemicals, Inc., submitted an 
allegation of critical circumstances with respect to imports of glycine 
from Japan.

Period of Investigation

    The period of investigation is January 1, 2006, through December 
31, 2006.

Scope of Investigation

    The merchandise covered by this investigation is glycine, which in 
its solid (i.e., crystallized) form is a free-flowing crystalline 
material. Glycine is used as a sweetener/taste enhancer, buffering 
agent, reabsorbable amino acid, chemical intermediate, metal complexing 
agent, dietary supplement, and is used in certain pharmaceuticals. The 
scope of this investigation covers glycine in any form and purity 
level. Although glycine blended with other materials is not covered by 
the scope of this investigation, glycine to which relatively small 
quantities of other materials have been added is covered by the scope. 
Glycine's chemical composition is C2H5NO2 
and is normally classified under subheading

[[Page 67272]]

2922.49.4020 of the Harmonized Tariff Schedule of the United States 
(HTSUS).
    The scope of this investigation also covers precursors of dried 
crystalline glycine including, but not limited to, glycine slurry 
(i.e., glycine in a non-crystallized form) and sodium glycinate. 
Glycine slurry is classified under the same HTSUS subheading as 
crystallized glycine (2922.49.4020) and sodium glycinate is classified 
under subheading HTSUS 2922.49.8000.
    While HTSUS subheadings are provided for convenience and customs 
purposes, our written description of the scope of this investigation is 
dispositive.

Adverse Facts Available

    For the final determination, we continue to find that, by failing 
to provide information we requested, Nu-Scaan Nutraceuticals Ltd. (Nu-
Scaan) and Yuki Gosei Co., Ltd. (Yuki Gosei), the mandatory respondents 
in this investigation, along with other producers and/or exporters of 
glycine from Japan (Showa Denko K.K., Hayashi Pure Chemical Industries 
Co. Ltd., CBC Co., Ltd., Seino Logix Co. Ltd., Estee Lauder Group 
Companies K.K., and Chelest Corporation) did not act to the best of 
their ability. Thus, the Department continues to find that the use of 
adverse facts available is warranted for these companies under sections 
776(a)(2) and (b) of the Act. See Preliminary Determination, 72 FR at 
52350.
    As we explained in Preliminary Determination, the rate of 280.57 
percent we selected as the adverse facts-available rate is the highest 
margin alleged in the petition, as recalculated in the April 19, 2007, 
``Office of AD/CVD Operations Initiation Checklist for the Antidumping 
Duty Petition on Glycine from Japan'' (the Initiation Checklist) on 
file in Import Administration's Central Records Unit, Room 1870, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230. See also Petition for the Imposition of 
Antidumping Duties on Imports of Glycine from India, Japan, and the 
Republic of Korea filed on March 30, 2007 (the Petition), and the April 
3, 12, 13, 17, and 18, 2007, supplements to the Petition filed on 
behalf of Geo Specialty Chemicals, Inc. We included the range of 
margins we re-calculated in the Initiation Checklist in Glycine from 
India, Japan, and the Republic of Korea: Initiation of Antidumping Duty 
Investigations, 72 FR 20816 (April 26, 2007) (Initiation Notice). 
Further, as discussed in Preliminary Determination, we corroborated the 
adverse facts-available rate pursuant to section 776(c) of the Act.

All-Others Rate

    Section 735(c)(5)(B) of the Act provides that, where the estimated 
weighted-averaged dumping margins established for all exporters and 
producers individually investigated are zero or de minimis or are 
determined entirely under section 776 of the Act, the Department may 
use any reasonable method to establish the estimated all-others rate 
for exporters and producers not individually investigated. Our recent 
practice under these circumstances has been to assign, as the all-
others rate, the simple average of the margins in the petition. See 
Notice of Final Determinations of Sales at Less Than Fair Value: 
Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products From 
Argentina, Japan and Thailand, 65 FR 5520, 5527-28 (February 4, 2000); 
see also Notice of Final Determination of Sales at Less Than Fair 
Value: Stainless Steel Plate in Coil from Canada, 64 FR 15457 (March 
31, 1999), and Notice of Final Determination of Sales at Less Than Fair 
Value: Stainless Steel Plate in Coil from Italy, 64 FR 15458, 15459 
(March 31, 1999). Consistent with our practice we calculated a simple 
average of the rates in the Petition, as recalculated in the Initiation 
Checklist at Attachment VI and as listed in Initiation Notice, and 
assigned this rate to all other manufacturers/exporters. For details of 
these calculations, see the memorandum from Dmitry Vladimirov to the 
File entitled ``Antidumping Duty Investigation on Glycine from Japan - 
Analysis Memo for All-Others Rate,'' dated September 6, 2007.

Final Determination of Investigation

    We determine that the following weighted-average dumping margins 
exist for the period January 1, 2006, through December 31, 2006:

------------------------------------------------------------------------
               Manufacturer or Exporter                 Margin (percent)
------------------------------------------------------------------------
Nu-Scaan Nutraceuticals Co., Ltd.....................             280.57
Yuki Gosei Co., Ltd..................................             280.57
Showa Denko K.K......................................             280.57
Hayashi Pure Chemical Industries Co., Ltd............             280.57
CBC Co., Ltd.........................................             280.57
Seino Logix Co., Ltd.................................             280.57
Estee Lauder Group Companies K.K.....................             280.57
Chelest Corporation..................................             280.57
All-Others...........................................             165.34
------------------------------------------------------------------------

Final Critical-Circumstances Determination

    On October 25, 2007, the petitioner in this investigation, Geo 
Specialty Chemicals, Inc., alleged that there is a reasonable basis to 
find that critical circumstances exist with respect to imports of 
glycine from Japan. In accordance with 19 CFR 351.206(e), because the 
petitioner submitted an allegation of critical circumstances at least 
21 days before the scheduled date of the final determination, the 
Department must make a final finding on critical circumstances not 
later than the date of the final determination, pursuant to section 
735(a)(3) of the Act.
    Section 735(a)(3) of the Act provides that the Department will 
determine that critical circumstances exist if the following criteria 
are met: (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. Section 351.206(h)(1) of 
the Department's regulations 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 an increase in imports of 15 percent during 
the ``relatively short period'' of time may be considered ``massive.''
    Section 351.206(i) of the regulations defines ``relatively short 
period'' as normally being the period beginning on the date the 
proceeding begins (i.e., the date the petition is filed) and ending at 
least three months later. The regulations also provide 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, the Department may consider a period of not 
less than three months from that earlier time.
    Because we are not aware of any antidumping duty order in any 
country on glycine from Japan, we do not find that there is a history 
of dumping and material injury by reason of dumped imports in the 
United States or elsewhere of the subject merchandise.

[[Page 67273]]

For this reason, the Department does not find a history of injurious 
dumping of glycine from Japan pursuant to section 735(a)(3)(A)(i) of 
the Act. Therefore, we must look to the second criterion for 
determining importer knowledge of dumping.
    To determine whether 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 in 
accordance with section 735(a)(3)(A)(ii) of the Act, the Department 
normally considers margins of 25 percent or more for export-price sales 
or 15 percent or more for constructed export-price transactions 
sufficient to impute knowledge of dumping. See Notice of Preliminary 
Determination of Sales at Less Than Fair Value and Affirmative 
Preliminary Determination of Critical Circumstances: Wax and Wax/Resin 
Thermal Transfer Ribbons From Japan, 68 FR 71072, 71076 (December 22, 
2003) (unchanged in Notice of Final Determination of Sales at Less Than 
Fair Value and Affirmative Final Determination of Critical 
Circumstances: Wax and Wax/Resin Thermal Transfer Ribbons from Japan, 
69 FR 11834, 11835 (March 12, 2004)), and Notice of Preliminary 
Determination of Sales at Less Than Fair Value: Certain Lined Paper 
Products from Indonesia, 71 FR 15162, 15166 (March 27, 2006) (Lined 
Paper Products from Indonesia) (unchanged in Notice of Final 
Determination of Sales at Less Than Fair Value and Affirmative Final 
Determination of Critical Circumstances: Certain Lined Paper Products 
from Indonesia, 71 FR 47171, 47173 (August 16, 2006)). For the reasons 
explained above, we have assigned a margin of 280.57 percent to the 
mandatory respondents, Nu-Scaan and Yuki Gosei. Consequently, we have 
imputed knowledge of dumping to importers of subject merchandise from 
these companies because the assigned margins for these companies exceed 
the 15-percent threshold.
    Similar to the Department's normal practice of conducting its 
critical-circumstances analysis of companies in the all-others group 
based on the experience of investigated companies, as discussed below 
and because we have assigned a margin of 280.57 percent to other 
Japanese exporters/producers of glycine (Showa Denko K.K., Hayashi Pure 
Chemical Industries Co. Ltd., CBC Co., Ltd., Seino Logix Co. Ltd., 
Estee Lauder Group Companies K.K., and Chelest Corporation), we have 
imputed knowledge of dumping to importers of subject merchandise from 
these companies.
    In determining whether to find that an importer knew or should have 
known that there would be material injury by reason of dumped imports, 
the Department normally will look to the preliminary injury 
determination of the U.S. International Trade Commission (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 there would be material 
injury by reason of dumped imports. See Notice of Final Determination 
of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in 
Coils From Japan, 64 FR 30574, 30578 (June 8, 1999). In this case, the 
ITC has found that a reasonable indication of present material injury 
due to dumping exists for Japan. See Glycine From India, Japan, and 
Korea, 72 FR 29352 (May 25, 2007) (Investigation Nos. 731-TA-1111-1113 
(Preliminary)) (ITC Prelim). As a result, the Department has determined 
that importers knew or should have known that there would be material 
injury by reason of dumped imports of subject merchandise from Japan.
    In determining whether there have been ``massive imports'' over a 
``relatively short period,'' the Department normally compares the 
import volume and value of the subject merchandise for three months 
immediately preceding and following the filing of the petition. Imports 
normally will be considered massive when imports have increased by 15 
percent or more during this ``relatively short period.'' Because we do 
not have verifiable data from any of the uncooperative Japanese 
respondents, we must base our ``massive imports'' determination as to 
these companies on the basis of facts otherwise available, pursuant to 
section 776(a) of the Act.\1\ Because these companies failed to 
cooperate by not acting to the best of their ability to respond to our 
requests for information, we may make an adverse inference in selecting 
from the facts otherwise available pursuant to section 776(b) of the 
Act. Therefore, consistent with our practice, we have made an adverse 
inference, as facts available, that there were massive imports from 
these companies over a relatively short period. See Notice of Final 
Determination of Sales at Less Than Fair Value: Collated Roofing Nails 
from Taiwan, 62 FR 51427 (October 1, 1997), and accompanying Issues and 
Decision memorandum at Comment 20.
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    \1\ Because the non-cooperating respondents in question did not 
respond to our requests for information during the course of this 
investigation we did not request monthly shipment data from these 
companies.
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    Based on our determination that importers knew or should have known 
that producers/exporters Nu-Scaan, Yuki Gosei, Showa Denko K.K., 
Hayashi Pure Chemical Industries Co. Ltd., CBC Co., Ltd., Seino Logix 
Co. Ltd., Estee Lauder Group Companies K.K., and Chelest Corporation 
were selling glycine from Japan at less than fair value, that there 
would be material injury by reason of such dumped imports, and that 
there have been massive imports of glycine from these producers/
exporters over a relatively short period, we determine affirmatively 
that critical circumstances exist for imports from Japan of glycine 
produced and/or exported by the companies in question.
    It is the Department's normal practice to conduct its critical-
circumstances analysis of companies in the all-others group based on 
the experience of investigated companies (see Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Steel Concrete 
Reinforcing Bars from Turkey, 62 FR 9737, 9741 (March 4, 1997) (the 
Department found that critical circumstances existed for the majority 
of the companies investigated and therefore concluded that critical 
circumstances also existed for companies covered by the all-others 
rate)). Notwithstanding that practice, however, the Department does not 
automatically extend an affirmative critical-circumstances 
determination to companies covered by the all-others rate. See Notice 
of Final Determination of Sales at Less Than Fair Value: Stainless 
Steel Sheet and Strip in Coils from Japan, 64 FR 30574, 30585 (June 8, 
1999) (Stainless Steel from Japan). Instead, the Department considers 
the traditional critical-circumstances criteria with respect to the 
companies covered by the all-others rate. Consistent with Stainless 
Steel from Japan, in this case we have applied the traditional 
critical-circumstances criteria to the all-others category for the 
antidumping investigation of glycine from Japan.
    First, in determining whether there is a reasonable basis to find 
that an importer knew or should have known that the exporter was 
selling glycine at less than fair value, we look to the all-others 
rate. The dumping margin for the all-others category in the instant 
case, 165.34 percent, exceeds the 15-percent threshold necessary to 
impute knowledge of dumping. Second, based on the ITC's preliminary 
material-injury determination, we also find that

[[Page 67274]]

importers knew or should have known that there would be material injury 
caused by the dumped merchandise.
    Finally, with respect to massive imports, we are unable to base our 
determination on our findings for the mandatory respondents because our 
determinations for all companies in this investigation were based on 
adverse facts available. We have not inferred, as adverse facts 
available, that massive imports exist for companies under the all-
others category because, unlike the uncooperative companies in 
question, the all-others companies have not failed to cooperate in this 
investigation. Therefore, an adverse inference with respect to a 
finding of a massive surge in imports by the all-others companies is 
not appropriate. Instead, consistent with the approach taken in 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), and Notice of Final Determinations of Sales at Less Than Fair 
Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products 
From Argentina, Japan and Thailand, 65 FR 5520, 5527 (February 4, 
2000), we examined U.S. Customs and Border Protection data\2\ on 
aggregate imports from Japan for the five months preceding and the five 
months following the filing of the petition in order to ascertain 
whether an increase in shipments of greater than 15 percent or more 
occurred within a relatively short period following the point in time 
at which importers had reason to know that a proceeding has 
commenced.\3\ We determined that, with respect to HTSUS number 
2922.49.4020, there have been massive imports of glycine from Japan 
over a relatively short period. For further discussion, see memorandum 
from Dmitry Vladimirov to Laurie Parkhill entitled ``Antidumping Duty 
Investigation on Glycine from Japan - Affirmative Final Determination 
of Critical Circumstances - All-Others Producers/Exporters,'' dated 
November 20, 2007.
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    \2\ With respect to HTSUS 2922.49.8000 (covered by the scope of 
this investigation) the Department did not use information supplied 
by U.S. Customs and Border Protection because information publically 
available indicates that this is a basket category that includes 
non-subject merchandise. Thus, the Department cannot make an 
accurate analysis to determine whether there were massive imports of 
subject merchandise classified under this HTSUS number for the all-
others category. See Lined Paper Products from Indonesia, 71 FR at 
15167, Stainless Steel from Japan, 64 FR at 30585, Preliminary 
Determinations of Critical Circumstances: Certain Small Diameter 
Carbon and Alloy Seamless Standard, Line and Pressure Pipe from 
Japan and South Africa, 65 FR 12509, 12511 (March 9, 2000) (where 
the Department determined that massive imports did not exist for 
imports from companies in the all-others category because it could 
not rely on the U.S. Customs data) (unchanged in Notice of Final 
Determinations of Sales at Less Than Fair Value: Certain Large 
Diameter Carbon and Alloy Seamless Standard, Line and Pressure Pipe 
from Japan; and Certain Small Diameter Carbon and Alloy Seamless 
Standard, Line and Pressure Pipe from Japan and the Republic of 
South Africa, 65 FR 25907, 25908 (May 4, 2000)).
    \3\ In its October 25, 2007, submission, the petitioner alleged 
an importer's prior knowledge of likelihood of the imminent filing 
of the petition at a time preceding the actual filing of the 
petition on March 30, 2007. Accordingly, in alleging a surge in 
imports of glycine from Japan, the petitioner relied on import data 
comprising the base and comparison periods, the selection of which 
was guided by the point in time of the alleged knowledge. We did not 
rely on import data comprising the base and comparison periods the 
petitioner used in our evaluation of the massive surge in imports. 
We find that the petitioner's claim of prior knowledge was not 
supported by evidence sufficient in demonstrating conclusively that 
importers had knowledge that a petition was likely to be filed. See, 
e.g., Notice of Preliminary Determination of Sales at Less Than Fair 
Value, Postponement of Final Determination, and Negative Preliminary 
Determination of Critical Circumstances: Certain Cold-Rolled Carbon 
Steel Flat Products From South Africa, 67 FR 31243 (May 9, 2002), 
and the applicable April 26, 2002, critical- circumstances decision 
memorandum from Richard W. Moreland to Faryar Shirzad entitled 
``Antidumping Duty Investigation on Certain Cold-Rolled Carbon Steel 
Flat Products From The Republic of South Africa - Preliminary 
Negative Determination of Critical Circumstances.'' A public version 
of this memorandum is on file at the Import Administration Central 
Records Unit in Room B-099 of the Department of Commerce main 
building.
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    Based on our determination that massive imports of glycine from the 
producers/exporters included in the all-others category have occurred 
and, consequently, that the third criterion necessary for determining 
affirmative critical circumstances has been met, we have determined 
affirmatively that critical circumstances exist for imports of glycine 
from Japan under HTSUS number 2922.49.4020 for producers/exporters in 
the all-others category.

Continuation of Suspension of Liquidation

    Pursuant to section 735(c)(1)(B) of the Act and 19 CFR 
351.211(b)(1), we will instruct U.S. Customs and Border Protection 
(CBP) to continue to suspend liquidation of all entries of subject 
merchandise from Japan entered, or withdrawn from warehouse, for 
consumption on or after September 13, 2007, the date of the publication 
of Preliminary Determination. Pursuant to section 735(c)(4) of the Act 
we will direct CBP to suspend liquidation of all entries, for all 
importers of subject merchandise that are entered, or withdrawn from 
warehouse, on or after 90 days before the date of publication of 
Preliminary Determination. We will instruct CBP to require a cash 
deposit or the posting of a bond equal to the weighted-average margin, 
as indicated in the chart above, as follows: (1) the rates for 
companies identified in the chart above will be the rates we have 
determined in this final determination; (2) if the exporter is not a 
firm identified in this investigation but the producer is, the rate 
will be the rate established for the producer of the subject 
merchandise; (3) the rate for all other producers or exporters will be 
165.34 percent. These suspension-of-liquidation instructions will 
remain in effect until further notice.

International Trade Commission Notification

    In accordance with section 735(d) of the Act, we have notified the 
ITC of our final determination. As our final determination is 
affirmative and in accordance with section 735(b)(2) of the Act, the 
ITC will determine, within 45 days, whether the domestic industry in 
the United States is materially injured, or threatened with material 
injury, by reason of imports or sales (or the likelihood of sales) for 
importation of the subject merchandise. If the ITC determines that 
material injury or threat of material injury does not exist, the 
proceeding will be terminated and all securities posted will be 
refunded or canceled. If the ITC determines that such injury does 
exist, the Department will issue an antidumping duty order directing 
CBP to assess antidumping duties on all imports of the subject 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after the effective date of the suspension of liquidation.

Notification Regarding APO

    This notice also serves as a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305. Timely notification of return/
destruction of APO materials or conversion to judicial protective order 
is hereby requested. Failure to comply with the regulations and the 
terms of an APO is a sanctionable violation.
    This determination is issued and published pursuant to sections 
735(d) and 777(i)(1) of the Act.

    Dated: November 20, 2007.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E7-23127 Filed 11-27-07; 8:45 am]
BILLING CODE 3510-DS-S