Certain New Pneumatic Off-The-Road Tires from the People's Republic of China: Affirmative Preliminary Determination of Critical Circumstances, 21312-21316 [E8-8575]
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Federal Register / Vol. 73, No. 77 / Monday, April 21, 2008 / Notices
determine that changed circumstances
exist to warrant revocation of the order.
EFFECTIVE DATE: (October 31, 2007)
FOR FURTHER INFORMATION CONTACT:
Douglas Kirby or Myrna Lobo, AD/CVD
Operations, Office 6, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–3782 or (202) 482–
2371, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department of Commerce (the
Department) published the antidumping
duty order on CPF from Thailand on
July 18, 1995. See Notice of
Antidumping Duty Order and Amended
Final Determination: Canned Pineapple
Fruit from Thailand, 60 FR 36775 (July
18, 1995) (Antidumping Duty Order). On
January 23, 2008, the Department
received a request for a changed
circumstances review from the Thai
Food Processors’ Association (TFPA).
The TFPA requested that the
Department revoke the antidumping
duty order because Maui Pineapple
Company Ltd. (petitioner) ceased
production of CPF on October 31, 2007.
On January 25, 2008, we received a
letter from petitioner indicating that it
had no objection to the changed
circumstances review and the
revocation of the antidumping duty
order. On March 7, 2008, the
Department published a notice of
initiation and preliminary results of a
changed circumstances review and its
intent to revoke the antidumping duty
order on canned pineapple fruit from
Thailand, effective October 31, 2007.
See Initiation and Preliminary Results.
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Scope of the Order
The product covered by this order is
CPF, defined as pineapple processed
and/or prepared into various product
forms, including rings, pieces, chunks,
tidbits, and crushed pineapple, that is
packed and cooked in metal cans with
either pineapple juice or sugar syrup
added. CPF is currently classifiable
under subheadings 2008.20.0010 and
2008.20.0090 of the Harmonized Tariff
Schedule of the United States (HTSUS).
HTSUS 2008.20.0010 covers CPF
packed in a sugar–based syrup; HTSUS
2008.20.0090 covers CPF packed
without added sugar (i.e., juice–packed).
Although these HTSUS subheadings are
provided for convenience and for
customs purposes, the written
description of the scope is dispositive.
There have been no scope rulings for the
subject order.
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Final Results of Changed
Circumstances Review and Revocation
of Order
Pursuant to sections 751(d)(1) and
782(h)(2) of the Tariff Act of 1930, as
amended (the Act), the Department may
revoke an antidumping duty order based
on a review under section 751(b) of the
Act (i.e., a changed circumstances
review). Section 751(b)(1) of the Act
requires a changed circumstances
review to be conducted upon receipt of
a request which shows changed
circumstances sufficient to warrant a
review.
In the instant review, based on the
information provided by the TFPA and
the lack of interest on the part of the
domestic industry, the Department
found preliminarily that, effective
October 31, 2007, the sole domestic
producer of the subject merchandise,
Maui Pineapple Company (Maui), was
no longer producing canned pineapple
fruit in the United States. See Initiation
and Preliminary Results. We did not
receive any comments regarding our
preliminary results. Therefore, the
Department is revoking the order on
canned pineapple fruit from Thailand,
effective October 31, 2007.
Effective Date of Revocation
Pursuant to sections 751(c)(3)(A) and
751(c)(6)(A)(iii) of the Act and 19 CFR
351.222(i)(2)(i), the Department will
instruct U.S. Customs and Border
Protection to terminate the suspension
of liquidation of the merchandise
subject to this order entered, or
withdrawn from warehouse, on or after
October 31, 2007. Entries of subject
merchandise prior to the effective date
of revocation will continue to be subject
to suspension of liquidation and
antidumping duty deposit requirements.
The Department will complete any
pending administrative reviews of this
order and will conduct an
administrative review of subject
merchandise entered prior to the
effective date of revocation in response
to appropriately filed requests for
review. This notice serves as a reminder
to parties subject to administrative
protective orders (APOs) of their
responsibility concerning the
disposition of proprietary information
disclosed under APO in accordance
with 19 CFR 351.306. Timely written
notification of the return/destruction of
APO materials or conversion to judicial
protective order is hereby requested.
Failure to comply with the regulations
and terms of an APO is a sanctionable
violation.
This determination is issued and
published in accordance with sections
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751(b)(1) and 777(i)(1) of the Act and 19
CFR 351.216.
Dated: April 14, 2008.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E8–8574 Filed 4–18–08; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
A–570–912
Certain New Pneumatic Off–The-Road
Tires from the People’s Republic of
China: Affirmative Preliminary
Determination of Critical
Circumstances
Import Administration,
International Trade Administration,
U.S. Department of Commerce.
EFFECTIVE DATE: April 21, 2008.
FOR FURTHER INFORMATION CONTACT:
Laurel LaCivita or Charles Riggle, AD/
CVD Operations, Office 8, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–4243 or (202) 482–
0650, respectively.
AGENCY:
PRELIMINARY DETERMINATION OF CRITICAL
CIRCUMSTANCES Based on allegations
contained in Petitioners’1 March 11,
2008, amendment to the June 18, 2007,
petition, we preliminarily find,
pursuant to section 733(e) of the Tariff
Act of 1930, as amended (‘‘the Act’’),
and section 351.206 of the Department
of Commerce (‘‘the Department’’)
regulations, that critical circumstances
do not exist with regard to imports of
certain new pneumatic off–the-road
tires (‘‘OTR tires’’) from the People’s
Republic of China (‘‘PRC’’) for the
following entities: Guizhou Tyre Co.,
Ltd. (‘‘GTC’’), Guizhou Tyre I/E Corp.
(‘‘GTCIE’’), Tire Engineering &
Distribution Inc. (‘‘TED’’), and their
affiliates (collectively ‘‘Guizhou Tyre’’),
Hebei Starbright Tire Co., Ltd.
(‘‘Starbright’’), Tianjin United Tire and
Rubber International Co., Ltd.
(‘‘TUTRIC’’), Xuzhou Xugong Tyre Co.,
Ltd. (‘‘Xugong’’) and the separate–rate
companies2 However, we find that
1 Titan Tire Corporation, a subsidiary of Titan
International, Inc. (‘‘Titan’’), and the United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International
Union, AFL-CIO-CLC (‘‘USW’’) (collectively,
‘‘Petitioners’’).
2 Aeolus Tyre Co., Ltd. (‘‘Aeolus’’), Double Coin
Holdings Ltd. (formerly known as Shanghai Tyre &
Rubber Co., Ltd.) (‘‘Double Coin’’), Double
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critical circumstances do exist with
respect to the PRC entity.
Background
Petitioners filed a timely allegation of
critical circumstances on March 11,
2007, in accordance with section
733(e)(1) of the Act and section
351.206(c)(1) of the Department’s
regulations. On March 18, 2008, the
Department requested that the
mandatory respondents, Guizhou Tyre,
Starbright, TUTRIC and Xugong report
their shipments of subject merchandise
to the United States on a monthly basis
for the period December 2006 through
December 2007. On March 28, 2008, the
mandatory respondents each provided
the requested information. However,
Guizhou Tyre and Xugong provided
shipment quantities on a per–tire basis
and Starbright and TUTRIC provided
shipment quantities on a per–kilogram
basis. Consequently, on March 28, 2008,
we requested that Guizhou Tyre and
Xugong provide shipment quantities on
a per–kilogram basis, and that Starbright
and TUTRIC provide shipment
quantities on a per–tire basis. On April
1 and 2, 2008, all four mandatory
respondents provided the requested
information.
Period of Investigation
The period of investigation (‘‘POI’’) is
October 1, 2006, through March 31,
2007. This period corresponds to the
two most recent fiscal quarters prior to
the month of the filing of the petition
(June 18, 2007).
Scope of Investigation
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The products covered by the scope of
the investigation are new pneumatic
tires designed for off–the-road and off–
highway use, subject to exceptions
identified below. Certain OTR tires are
generally designed, manufactured and
offered for sale for use on off–road or
Happiness Tyre Industries Corp., Ltd. (‘‘Double
Happiness’’), Qingdao Free Trade Zone Full-World
International Trading Co., Ltd. (‘‘Full-World’’),
Jiangsu Feichi Co., Ltd. (‘‘Feichi’’), KS Holding
Limited/KS Resources Limited (‘‘KS Holding’’),
Laizhou Xiongying Rubber Industry Co., Ltd.
(‘‘Xiongying’’), Oriental Tyre Technology Limited
(‘‘Oriental’’), Qingdao Etyre International Trade Co.,
Ltd. (‘‘Etyre7rdquo;), Qingdao Hengda Tyres Co.,
Ltd. (‘‘Hengda’’), Qingdao Milestone Tyre Co., Ltd.
(‘‘Milestone’’), Qingdao Qihang Tyre Co., Ltd.
(‘‘Qihang’’), Qingdao Qizhou Rubber Co., Ltd.
(‘‘Qizhou’’), Qingdao Sinorient International Ltd.
(‘‘Sinorent’’), Shandong Huitong Tyre Co., Ltd.
(‘‘Huitong’’), Shandong Jinyu Tyre Co., Ltd.
(‘‘Jinyu’’), Shandong Taishan Tyre Co., Ltd.
(‘‘Taishan’’), Shandong Wanda Boto Tyre Co., Ltd.
(‘‘Wanda Boto’’), Shandong Xingyuan International
Trading Co., Ltd. (‘‘Xingyuan’’), Techking Tires
Limited (‘‘Techking’’), Triangle Tyre Co., Ltd.
(‘‘Triangle Tyre’’), Wendeng City Sanfeng Tyre Co.,
Ltd. (‘‘Sanfeng’’), and Zhaoyuan Leo Rubber Co.,
Ltd. (‘‘Leo’’).
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off–highway surfaces, including but not
limited to, agricultural fields, forests,
construction sites, factory and
warehouse interiors, airport tarmacs,
ports and harbors, mines, quarries,
gravel yards, and steel mills. The
vehicles and equipment for which
certain OTR tires are designed for use
include, but are not limited to: (1)
agricultural and forestry vehicles and
equipment, including agricultural
tractors,3 combine harvesters,4
agricultural high clearance sprayers,5
industrial tractors,6 log–skidders,7
agricultural implements, highway–
towed implements, agricultural logging,
and agricultural, industrial, skid–steers/
mini–loaders;8 (2) construction vehicles
and equipment, including earthmover
articulated dump products, rigid frame
haul trucks,9 front end loaders,10
dozers,11 lift trucks, straddle carriers,12
graders,13 mobile cranes, compactors;
and (3) industrial vehicles and
equipment, including smooth floor,
industrial, mining, counterbalanced lift
trucks, industrial and mining vehicles
other than smooth floor, skid–steers/
mini–loaders, and smooth floor off–theroad counterbalanced lift trucks.14 The
3 An agricultural tractor is a four-wheeled vehicle
usually with large rear tires and small front tires
that is used to tow farming equipment.
4 A combine harvester is used to harvest crops
such as corn or wheat.
5 An agricultural sprayer is used to irrigate
agricultural fields.
6 An industrial tractor is a four-wheeled vehicle
usually with large rear tires and small front tires
that is used to tow industrial equipment.
7 A log skidder has a grappling lift arm that is
used to grasp, lift and move trees that have been
cut down to a truck or trailer for transport to a mill
or other destination.
8 A skid-steer loader is a four-wheel drive vehicle
with the left-side drive wheels independent of the
right-side drive wheels and lift arms that lie
alongside the driver with the major pivot points
behind the driver’s shoulders. Skid-steer loaders are
used in agricultural, construction and industrial
settings.
9 A haul truck, which may be either rigid frame
or articulated (i.e., able to bend in the middle) is
typically used in mines, quarries and construction
sites to haul soil, aggregate, mined ore, or debris.
10 A front loader has lift arms in front of the
vehicle. It can scrape material from one location to
another, carry material in its bucket or load material
into a truck or trailer.
11 A dozer is a large four-wheeled vehicle with a
dozer blade that is used to push large quantities of
soil, sand, rubble, etc., typically around
construction sites. They can also be used to perform
‘‘rough grading’’ in road construction.
12 A straddle carrier is a rigid frame, enginepowered machine that is used to load and offload
containers from container vessels and load them
onto (or off of) tractor trailers.
13 A grader is a vehicle with a large blade used
to create a flat surface. Graders are typically used
to perform ‘‘finish grading.’’ Graders are commonly
used in maintenance of unpaved roads and road
construction to prepare the base course onto which
asphalt or other paving material will be laid.
14 A counterbalanced lift truck is a rigid frame,
engine-powered machine with lift arms that has
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foregoing list of vehicles and equipment
generally have in common that they are
used for hauling, towing, lifting, and/or
loading a wide variety of equipment and
materials in agricultural, construction
and industrial settings. The foregoing
descriptions are illustrative of the types
of vehicles and equipment that use
certain OTR tires, but are not
necessarily all–inclusive. While the
physical characteristics of certain OTR
tires will vary depending on the specific
applications and conditions for which
the tires are designed (e.g., tread pattern
and depth), all of the tires within the
scope have in common that they are
designed for off–road and off–highway
use. Except as discussed below, OTR
tires included in the scope of the
petitions range in size (rim diameter)
generally but not exclusively from 8
inches to 54 inches. The tires may be
either tube–type or tubeless, radial or
non–radial, and intended for sale either
to original equipment manufacturers or
the replacement market. The subject
merchandise is currently classifiable
under Harmonized Tariff Schedule of
the United States (‘‘HTSUS’’)
subheadings: 4011.20.10.25,
4011.20.10.35, 4011.20.50.30,
4011.20.50.50, 4011.61.00.00,
4011.62.00.00, 4011.63.00.00,
4011.69.00.00, 4011.92.00.00,
4011.93.40.00, 4011.93.80.00,
4011.94.40.00, and 4011.94.80.00. While
HTSUS subheadings are provided for
convenience and customs purposes, our
written description of the scope is
dispositive.
Specifically excluded from the scope
are new pneumatic tires designed,
manufactured and offered for sale
primarily for on–highway or on–road
use, including passenger cars, race cars,
station wagons, sport utility vehicles,
minivans, mobile homes, motorcycles,
bicycles, on–road or on–highway
trailers, light trucks, and trucks and
buses. Such tires generally have in
common that the symbol ‘‘DOT’’ must
appear on the sidewall, certifying that
the tire conforms to applicable motor
vehicle safety standards. Such excluded
tires may also have the following
designations that are used by the Tire
and Rim Association:
additional weight incorporated into the back of the
machine to offset or counterbalance the weight of
loads that it lifts so as to prevent the vehicle from
overturning. An example of a counterbalanced lift
truck is a counterbalanced fork lift truck.
Counterbalanced lift trucks may be designed for use
on smooth floor surfaces, such as a factory or
warehouse, or other surfaces, such as construction
sites, mines, etc.
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Prefix letter designations:
• P - Identifies a tire intended primarily
for service on passenger cars;
• LT - Identifies a tire intended
primarily for service on light trucks;
and,
• ST - Identifies a special tire for trailers
in highway service.
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Suffix letter designations:
• TR - Identifies a tire for service on
trucks, buses, and other vehicles with
rims having specified rim diameter of
nominal plus 0.156″ or plus 0.250″;
• MH - Identifies a tire for Mobile
Homes;
• HC - Identifies a heavy duty tire
designated for use on ‘‘HC’’ 15″ tapered
rims used on trucks, buses, and other
vehicles. This suffix is intended to
differentiate among tires for light trucks,
and other vehicles or other services,
which use a similar designation.
• Example: 8R17.5 LT, 8R17.5 HC;
• LT - Identifies light truck tires for
service on trucks, buses, trailers, and
multipurpose passenger vehicles used
in nominal highway service; and
• MC - Identifies tires and rims for
motorcycles.
The following types of tires are also
excluded from the scope: pneumatic
tires that are not new, including
recycled or retreaded tires and used
tires; non–pneumatic tires, including
solid rubber tires; tires of a kind used on
aircraft, all–terrain vehicles, and
vehicles for turf, lawn and garden, golf
and trailer applications; and tires of a
kind used for mining and construction
vehicles and equipment that have a rim
diameter equal to or exceeding 39
inches. Such tires may be distinguished
from other tires of similar size by the
number of plies that the construction
and mining tires contain (minimum of
16) and the weight of such tires
(minimum 1500 pounds).
Critical Circumstances
On March 11, 2008, Petitioners
alleged that there is a reasonable basis
to believe or suspect that critical
circumstances exist with respect to the
antidumping investigation of OTR tires
from the PRC. Because Petitioners
submitted critical circumstances
allegations more than 30 days before the
scheduled date of the final
determination but later than 20 days
before the preliminary determination,
the Department must issue a
preliminary determination of critical
circumstances within 30 days of
Petitioners’ submitted allegation.15
Section 733(e)(1) of the Act provides
15 See Section 351.206(c)(2)(ii) of the
Department’s regulations.
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that, upon receipt of a timely allegation
of critical circumstances, the
Department 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.
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, section 351.206(h)(2) of the
Department’s regulations provides that,
‘‘In 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.’’
Section 351.206(i) of the Department’s
regulations defines ‘‘relatively short
period’’ as generally the period
beginning on the date the proceeding
begins (i.e., the date the petition is filed)
and ending at least three months later.
This section provides further 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.
In determining whether the above
statutory criteria have been satisfied, we
examined the following information: (1)
the evidence presented in Petitioners’
March 11, 2008, submission; (2)
evidence obtained since the initiation of
the less–than-fair–value (‘‘LTFV’’)
investigation (i.e., import statistics
released by the U.S. Census Bureau);
and (3) the International Trade
Commission’s (‘‘ITC’’) preliminary
material injury determination.16
In determining whether a history of
dumping and material injury exists, the
16 See Investigation Nos. 701-TA-448 and 731-TA1117 (Preliminary), Certain Off-the-Road Tires From
China, 72 FR 50699, (September 4, 2007) (‘‘ITC
Preliminary Determination’’).
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Department generally considers 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 with
regard to imports of subject
merchandise. Petitioners made no
statement concerning a history of
dumping with respect to OTR tires from
the PRC. We are not aware of any other
antidumping order in the United States
or in any country on OTR tires from the
PRC. Therefore, the Department finds no
history of injurious dumping of OTR
tires from the PRC pursuant to section
733(e)(1)(A)(i) of the Act.
In determining whether an importer
knew, or should have known, that the
exporter was selling subject
merchandise at LTFV, the Department
must rely on the facts before it at the
time the determination is made. The
Department normally considers margins
of 25 percent or more for export price
(‘‘EP’’) sales and 15 percent or more for
constructed export price (‘‘CEP’’) sales
sufficient to impute importer knowledge
of sales at LTFV.17 For the mandatory
respondents in this investigation, our
preliminary determination found
margins of 16.35 percent for Guizhou
Tyre, 19.73 percent for Starbright, 10.98
percent for TUTRIC, and 51.81 percent
for Xugong. The separate–rate
companies received a margin of 24.75
percent based on the calculated
weighted–average margins of Guizhou
Tyre, Starbright, TUTRIC and Xugong.
The PRC entity received a margin of
210.48 percent.18 Based on these
margins, the Department preliminarily
finds that an importer knew, or should
have known, that Guizhou Tyre,
Starbright, Xugong, the separate–rate
companies and the PRC entity were
selling subject merchandise at LTFV.19
TUTRIC’s preliminary margin did not
17 See, e.g., Carbon and Alloy Steel Wire Rod
From Germany, Mexico, Moldova, Trinidad and
Tobago, and Ukraine: Notice of Preliminary
Determination of Critical Circumstances, 67 FR
6224, 6225 (February 11, 2002) (unchanged in the
final determination).
18 See Certain New Pneumatic Off-The-Road Tires
from the People’s Republic of China: Preliminary
Determination of Sales at Less Than Fair Value and
Postponement of Final Determination, 73 FR 9278
(February 20, 2008) (‘‘Preliminary Determination’’).
19 In this investigation, Guizhou Tyre reported
making both CEP and EP sales, and Starbright
reported making only CEP sales. We based our
analysis for TUTRIC and Xugong on EP sales.
Because CEP sales constitute the vast majority of
Guizhou Tyre’s total U.S. sales by quantity, we find
that it is appropriate to base our finding of
knowledge of dumping on whether Guizhou Tyre’s
margin exceeds 15 percent. See Notice of Final
Determination of Sales at Less Than Fair Value and
Final Determination of Critical Circumstances:
Diamond Sawblades and Parts Thereof from the
Republic of Korea, 71 FR 29310 (May 22, 2006), and
accompanying Issues and Decision Memorandum at
Comment 9.
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meet the threshold for imputing
knowledge of dumping.
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 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.20 In the present case,
the ITC preliminarily found a
reasonable indication that an industry
in the United States is materially
injured by imports of OTR tires from the
PRC.21
Based on the ITC’s preliminary
determination of material injury and the
preliminary dumping margins for
Guizhou Tyre, Starbright, Xugong, the
separate–rate companies and the PRC
entity, the Department preliminarily
finds that there is a reasonable basis to
believe or suspect that the importers
knew, or should have known, that there
was likely to be material injury by
means of sales of subject merchandise at
LTFV of subject merchandise from these
respondents.
Pursuant to section 351.206(h) of the
Department’s regulations, in general, we
will not consider imports to be massive
unless imports have increased by at
least 15 percent during a relatively
‘‘short 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.22 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’’).
According to the regulations, ‘‘if the
Secretary 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
Secretary may consider a time period of
not less than three months from that
earlier time.’’ Imports normally will be
considered massive when imports
during the comparison period have
20 See, e.g., Final Determination of Sales at Less
Than Fair Value: Certain Cut-To-Length Carbon
Steel Plate from the People’s Republic of China, 62
FR 61964 (November 20, 1997).
21 See ITC Preliminary Determination.
22 See section 351.206(i) of the Department’s
regulations.
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increased by 15 percent or more
compared to imports during the base
period.23
Petitioners based their allegation of
critical circumstances in this
investigation on the increase in imports
of OTR tires that began with the filing
of the antidumping duty petition on
June 18, 2007, and continued through
the preliminary determination on
February 5, 2008. The Department’s
practice is to rely upon the longest
period for which information is
available from the month that the
petition was filed through the date of
the preliminary determination.24 We
have chosen a period of six months as
reflective of the ‘‘relatively short
period’’ commanded by the statute for
determining whether imports have been
massive.25 In applying the six–month
period, we used a base period of July
2007 through December 2007 and a
comparison period of December 2006
through May 2007. The Department
requested that the respondents in this
investigation provide monthly shipment
data for the period December 2006
through December 2007.
On March 28, April 1 and April 2,
2008, the Department received
company–specific data from all four
mandatory respondents. We selected
kilograms as the appropriate
measurement by which to conduct this
analysis. When we compared these
companies’ import data during the base
period with the comparison period, we
found that the volume of imports of
OTR tires from the mandatory
respondents did not increase over the
base period by 15 percent and, thus,
based upon section 351.206(h) of the
Department’s regulations, we did not
find them to be massive.26
We did not request the monthly
shipment information necessary to
determine if there were massive imports
for the separate–rate companies. To
measure whether massive imports
existed for purposes of critical
circumstances, we relied on the
experience of the mandatory
respondents. As explained above, we
23 See section 351.206(c)(2) of the Department’s
regulations.
24 See Notice of Preliminary Determination of
Sales at Less Than Fair Value, Postponement of
Final Determination, and Affirmative Preliminary
Determination of Critical Circumstances: Certain
Color Television Receivers From the People’s
Republic of China, 68 FR 66800, 66809 (November
28, 2003) (unchanged in the final determination).
25 See section 733(e)(1)(B) of the Act.
26 See Memorandum, ‘‘Less-than-Fair-Value
Investigation of Certain New Pneumatic Off-TheRoad Tires (‘‘OTR Tires7rdquo;) from the People’s
Republic of China (‘‘PRC’’), Affirmative Preliminary
Determination of Critical Circumstance,’’ dated
concurrently with this notice.
PO 00000
Frm 00013
Fmt 4703
Sfmt 4703
21315
compared the weighted–average import
data during the base and comparison
periods for all mandatory respondents,
and determined that the increase in
volume did not exceed 15 percent for
any of the mandatory respondents.
Therefore, based upon section
351.206(h) of the Department’s
regulations, we do not find the imports
of the separate–rate companies to be
massive.
Because the PRC entity did not
respond to our antidumping
questionnaire, we were unable to obtain
shipment data from the PRC entity for
purposes of our critical–circumstances
analysis and there is, therefore, 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.
The statute requires that certain
conditions be met before the
Department may resort to the facts
otherwise available. When 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 the
opportunity to remedy or explain the
deficiency. Because the PRC entity did
not respond to the Department’s request
for information, we used facts available,
in accordance with section 776(a) of the
Act, in determining whether there were
massive imports of merchandise
produced by the PRC entity.
Section 776(b) of the Act provides
that if the Department finds that the
respondent ‘‘has failed to cooperate by
not acting to the best of its ability to
comply with a request for information .
. .{the Department} may use an
inference that is adverse to the interests
of that party in selecting from among the
E:\FR\FM\21APN1.SGM
21APN1
21316
Federal Register / Vol. 73, No. 77 / Monday, April 21, 2008 / Notices
facts otherwise available.’’ We have
determined that, in not responding to
the Department’s questionnaires, the
PRC entity has not acted to the best of
its ability and an adverse inference is
warranted.27 Thus, we have made an
adverse inference that there were
massive imports from the PRC entity
over a relatively short period.
In this case, the HTS numbers listed
in the scope of the investigation include
both subject merchandise and non–
subject merchandise, and thus, we were
not able to distinguish the amounts of
shipments accounted for by the
mandatory and separate rate
respondents from the amount of
shipments accounted for by the PRC–
wide entity with respect to subject
merchandise.28 Accordingly, we were
not able to use the U.S. Census Bureau
data to corroborate our adverse
inference. However, as the SAA states,
‘‘The fact that corroboration may not be
practicable in a given circumstance will
not prevent the agencies from applying
an adverse inference under subsection
(b).’’29
We will issue a final determination
concerning critical circumstances for all
exporters of subject merchandise from
the PRC when we issue our final
determination in this investigation,
which will be not later than July 7,
2008, the first business day after the
statutory deadline of July 4, 2008.
Case briefs or other written comments
may be submitted to the Assistant
Secretary for Import Administration no
later than three days after the
publication of the preliminary
determination of critical circumstances
in this proceeding. Rebuttal briefs
limited to issues raised in the
aforementioned case briefs will be due
no later than two days after the deadline
date for case briefs.
Suspension of Liquidation
With respect to the PRC entity, we
will direct CBP to suspend liquidation
of all unliquidated entries of OTR tires
from the PRC that were entered, or
withdrawn from warehouse, for
consumption on or after November 22,
2007, which is 90 days prior to February
20, 2008, the date of publication in the
Federal Register of our preliminary
determination in this investigation.
With respect to the mandatory
27 See
Preliminary Determination.
Notice of Final Determination of Sales at
Less Than Fair Value: Stainless Steel Sheet and
Strip in Coils from Japan, Part II, 64 FR 30574,
30585 (June 8, 1999).
29 See Statement of Administrative Action (SAA)
accompanying the Uruguay Round Agreements Act,
H. Doc. No. 316, 103d Cong., 2d Session, Vol. 1
(1994) at 870.
rwilkins on PROD1PC63 with NOTICES
28 See
VerDate Aug<31>2005
16:59 Apr 18, 2008
Jkt 214001
respondents, Guizhou Tyre, Starbright,
TUTRIC and Xugong, and the separate–
rate companies, in accordance with
section 733(d) of the Act, we will make
no changes to our instructions to CBP
with respect to the suspension of
liquidation of all entries of subject
merchandise entered, or withdrawn
from warehouse, for consumption on or
after February 20, 2008.
This determination is issued and
published in accordance with Sections
733(f) and 777(i)(1) of the Act.
(A–580–816)
within 90 days after the date on which
the preliminary results were issued.
However, if the Department concludes
that the case is extraordinarily
complicated, it may extend the 90–day
period to 150 days. Interested parties
raised several complex issues pertaining
to Haewon MSC Co., Ltd.’s cost of
production and financial ratios that
require a significant amount of analysis
by the Department. Given the complex
issues raised by the parties in their
comments on our preliminary results,
and in accordance with section
751(a)(2)(B)(iv) of the Act, we are
extending the time period for issuing
the final results of review to 150 days
after the publication of the preliminary
results. Therefore, as that day falls on a
Saturday, the final results are now due
no later than June 23, 2008, the next
business day.
This extension is issued and
published in accordance with sections
751(a)(2)(B)(iv) and 777(i)(1) of the Act
and 19 CFR 351.214(i)(2).
Corrosion–Resistant Carbon Steel Flat
Products from Korea: Extension of
Time Limits for the Final Results of
Antidumping Duty New Shipper
Review
Dated: April 9, 2008.
Stephen J. Claeys,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. E8–8570 Filed 4–18–08; 8:45 am]
Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: April 21, 2008.
FOR FURTHER INFORMATION CONTACT:
Victoria Cho or George McMahon, AD/
CVD Operations, Office 3, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–5075 and (202)
482–1167, respectively.
SUPPLEMENTARY INFORMATION:
BILLING CODE 3510–DS–S
Dated: April 11, 2008.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E8–8575 Filed 4–18–08; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
AGENCY:
DEPARTMENT OF COMMERCE
International Trade Administration
[Application No. 88–10A16]
Export Trade Certificate of Review
Notice of application (#88–
10A16) to amend the Export Trade
Certificate of Review Issued to Wood
Machinery Manufacturers of America.
ACTION:
SUMMARY: Export Trading Company
Affairs, International Trade
Administration, Department of
On January 23, 2008, the Department
Commerce, has received an application
published the preliminary results of the
to amend an Export Trade Certificate of
new shipper review of the antidumping
Review. This notice summarizes the
duty order on certain corrosion–
proposed amendment and requests
resistant carbon steel products (CORE)
comments relevant to whether the
from the Republic of Korea. See Certain
Certificate should be issued.
Corrosion–Resistant Carbon Steel Flat
FOR FURTHER INFORMATION CONTACT:
Products from the Republic of Korea:
Jeffrey Anspacher, Director, Export
Notice of Preliminary Results of
Antidumping Duty New Shipper Review, Trading Company Affairs, International
73 FR 3925 (January 23, 2008). The final Trade Administration, (202) 482–5131
(this is not a toll-free number) or E-mail
results are currently due no later than
at oetca@ita.doc.gov.
April 14, 2008.
SUPPLEMENTARY INFORMATION: Title III of
Extension of Time Limit of Preliminary the Export Trading Company Act of
Results
1982 (15 U.S.C. 4001–21) authorizes the
Section 751(a)(2)(B)(iv) of the Tariff
Secretary of Commerce to issue Export
Act of 1930, as amended (the Act),
Trade Certificates of Review. An Export
requires the Department to issue the
Trade Certificate of Review protects the
final results of a new shipper review
holder and the members identified in
Background
PO 00000
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Fmt 4703
Sfmt 4703
E:\FR\FM\21APN1.SGM
21APN1
]]>Agencies
[Federal Register Volume 73, Number 77 (Monday, April 21, 2008)]
[Notices]
[Pages 21312-21316]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8575]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
A-570-912
Certain New Pneumatic Off-The-Road Tires from the People's
Republic of China: Affirmative Preliminary Determination of Critical
Circumstances
AGENCY: Import Administration, International Trade Administration, U.S.
Department of Commerce.
EFFECTIVE DATE: April 21, 2008.
FOR FURTHER INFORMATION CONTACT: Laurel LaCivita or Charles Riggle, AD/
CVD Operations, Office 8, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
4243 or (202) 482-0650, respectively.
PRELIMINARY DETERMINATION OF CRITICAL CIRCUMSTANCES Based on
allegations contained in Petitioners'\1\ March 11, 2008, amendment to
the June 18, 2007, petition, we preliminarily find, pursuant to section
733(e) of the Tariff Act of 1930, as amended (``the Act''), and section
351.206 of the Department of Commerce (``the Department'') regulations,
that critical circumstances do not exist with regard to imports of
certain new pneumatic off-the-road tires (``OTR tires'') from the
People's Republic of China (``PRC'') for the following entities:
Guizhou Tyre Co., Ltd. (``GTC''), Guizhou Tyre I/E Corp. (``GTCIE''),
Tire Engineering & Distribution Inc. (``TED''), and their affiliates
(collectively ``Guizhou Tyre''), Hebei Starbright Tire Co., Ltd.
(``Starbright''), Tianjin United Tire and Rubber International Co.,
Ltd. (``TUTRIC''), Xuzhou Xugong Tyre Co., Ltd. (``Xugong'') and the
separate-rate companies\2\ However, we find that
[[Page 21313]]
critical circumstances do exist with respect to the PRC entity.
---------------------------------------------------------------------------
\1\ Titan Tire Corporation, a subsidiary of Titan International,
Inc. (``Titan''), and the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, AFL-CIO-CLC (``USW'') (collectively,
``Petitioners'').
\2\ Aeolus Tyre Co., Ltd. (``Aeolus''), Double Coin Holdings
Ltd. (formerly known as Shanghai Tyre & Rubber Co., Ltd.) (``Double
Coin''), Double Happiness Tyre Industries Corp., Ltd. (``Double
Happiness''), Qingdao Free Trade Zone Full-World International
Trading Co., Ltd. (``Full-World''), Jiangsu Feichi Co., Ltd.
(``Feichi''), KS Holding Limited/KS Resources Limited (``KS
Holding''), Laizhou Xiongying Rubber Industry Co., Ltd.
(``Xiongying''), Oriental Tyre Technology Limited (``Oriental''),
Qingdao Etyre International Trade Co., Ltd. (``Etyre7rdquo;),
Qingdao Hengda Tyres Co., Ltd. (``Hengda''), Qingdao Milestone Tyre
Co., Ltd. (``Milestone''), Qingdao Qihang Tyre Co., Ltd.
(``Qihang''), Qingdao Qizhou Rubber Co., Ltd. (``Qizhou''), Qingdao
Sinorient International Ltd. (``Sinorent''), Shandong Huitong Tyre
Co., Ltd. (``Huitong''), Shandong Jinyu Tyre Co., Ltd. (``Jinyu''),
Shandong Taishan Tyre Co., Ltd. (``Taishan''), Shandong Wanda Boto
Tyre Co., Ltd. (``Wanda Boto''), Shandong Xingyuan International
Trading Co., Ltd. (``Xingyuan''), Techking Tires Limited
(``Techking''), Triangle Tyre Co., Ltd. (``Triangle Tyre''), Wendeng
City Sanfeng Tyre Co., Ltd. (``Sanfeng''), and Zhaoyuan Leo Rubber
Co., Ltd. (``Leo'').
---------------------------------------------------------------------------
Background
Petitioners filed a timely allegation of critical circumstances on
March 11, 2007, in accordance with section 733(e)(1) of the Act and
section 351.206(c)(1) of the Department's regulations. On March 18,
2008, the Department requested that the mandatory respondents, Guizhou
Tyre, Starbright, TUTRIC and Xugong report their shipments of subject
merchandise to the United States on a monthly basis for the period
December 2006 through December 2007. On March 28, 2008, the mandatory
respondents each provided the requested information. However, Guizhou
Tyre and Xugong provided shipment quantities on a per-tire basis and
Starbright and TUTRIC provided shipment quantities on a per-kilogram
basis. Consequently, on March 28, 2008, we requested that Guizhou Tyre
and Xugong provide shipment quantities on a per-kilogram basis, and
that Starbright and TUTRIC provide shipment quantities on a per-tire
basis. On April 1 and 2, 2008, all four mandatory respondents provided
the requested information.
Period of Investigation
The period of investigation (``POI'') is October 1, 2006, through
March 31, 2007. This period corresponds to the two most recent fiscal
quarters prior to the month of the filing of the petition (June 18,
2007).
Scope of Investigation
The products covered by the scope of the investigation are new
pneumatic tires designed for off-the-road and off-highway use, subject
to exceptions identified below. Certain OTR tires are generally
designed, manufactured and offered for sale for use on off-road or off-
highway surfaces, including but not limited to, agricultural fields,
forests, construction sites, factory and warehouse interiors, airport
tarmacs, ports and harbors, mines, quarries, gravel yards, and steel
mills. The vehicles and equipment for which certain OTR tires are
designed for use include, but are not limited to: (1) agricultural and
forestry vehicles and equipment, including agricultural tractors,\3\
combine harvesters,\4\ agricultural high clearance sprayers,\5\
industrial tractors,\6\ log-skidders,\7\ agricultural implements,
highway-towed implements, agricultural logging, and agricultural,
industrial, skid-steers/mini-loaders;\8\ (2) construction vehicles and
equipment, including earthmover articulated dump products, rigid frame
haul trucks,\9\ front end loaders,\10\ dozers,\11\ lift trucks,
straddle carriers,\12\ graders,\13\ mobile cranes, compactors; and (3)
industrial vehicles and equipment, including smooth floor, industrial,
mining, counterbalanced lift trucks, industrial and mining vehicles
other than smooth floor, skid-steers/mini-loaders, and smooth floor
off-the-road counterbalanced lift trucks.\14\ The foregoing list of
vehicles and equipment generally have in common that they are used for
hauling, towing, lifting, and/or loading a wide variety of equipment
and materials in agricultural, construction and industrial settings.
The foregoing descriptions are illustrative of the types of vehicles
and equipment that use certain OTR tires, but are not necessarily all-
inclusive. While the physical characteristics of certain OTR tires will
vary depending on the specific applications and conditions for which
the tires are designed (e.g., tread pattern and depth), all of the
tires within the scope have in common that they are designed for off-
road and off-highway use. Except as discussed below, OTR tires included
in the scope of the petitions range in size (rim diameter) generally
but not exclusively from 8 inches to 54 inches. The tires may be either
tube-type or tubeless, radial or non-radial, and intended for sale
either to original equipment manufacturers or the replacement market.
The subject merchandise is currently classifiable under Harmonized
Tariff Schedule of the United States (``HTSUS'') subheadings:
4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50,
4011.61.00.00, 4011.62.00.00, 4011.63.00.00, 4011.69.00.00,
4011.92.00.00, 4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and
4011.94.80.00. While HTSUS subheadings are provided for convenience and
customs purposes, our written description of the scope is dispositive.
---------------------------------------------------------------------------
\3\ An agricultural tractor is a four-wheeled vehicle usually
with large rear tires and small front tires that is used to tow
farming equipment.
\4\ A combine harvester is used to harvest crops such as corn or
wheat.
\5\ An agricultural sprayer is used to irrigate agricultural
fields.
\6\ An industrial tractor is a four-wheeled vehicle usually with
large rear tires and small front tires that is used to tow
industrial equipment.
\7\ A log skidder has a grappling lift arm that is used to
grasp, lift and move trees that have been cut down to a truck or
trailer for transport to a mill or other destination.
\8\ A skid-steer loader is a four-wheel drive vehicle with the
left-side drive wheels independent of the right-side drive wheels
and lift arms that lie alongside the driver with the major pivot
points behind the driver's shoulders. Skid-steer loaders are used in
agricultural, construction and industrial settings.
\9\ A haul truck, which may be either rigid frame or articulated
(i.e., able to bend in the middle) is typically used in mines,
quarries and construction sites to haul soil, aggregate, mined ore,
or debris.
\10\ A front loader has lift arms in front of the vehicle. It
can scrape material from one location to another, carry material in
its bucket or load material into a truck or trailer.
\11\ A dozer is a large four-wheeled vehicle with a dozer blade
that is used to push large quantities of soil, sand, rubble, etc.,
typically around construction sites. They can also be used to
perform ``rough grading'' in road construction.
\12\ A straddle carrier is a rigid frame, engine-powered machine
that is used to load and offload containers from container vessels
and load them onto (or off of) tractor trailers.
\13\ A grader is a vehicle with a large blade used to create a
flat surface. Graders are typically used to perform ``finish
grading.'' Graders are commonly used in maintenance of unpaved roads
and road construction to prepare the base course onto which asphalt
or other paving material will be laid.
\14\ A counterbalanced lift truck is a rigid frame, engine-
powered machine with lift arms that has additional weight
incorporated into the back of the machine to offset or
counterbalance the weight of loads that it lifts so as to prevent
the vehicle from overturning. An example of a counterbalanced lift
truck is a counterbalanced fork lift truck. Counterbalanced lift
trucks may be designed for use on smooth floor surfaces, such as a
factory or warehouse, or other surfaces, such as construction sites,
mines, etc.
---------------------------------------------------------------------------
Specifically excluded from the scope are new pneumatic tires
designed, manufactured and offered for sale primarily for on-highway or
on-road use, including passenger cars, race cars, station wagons, sport
utility vehicles, minivans, mobile homes, motorcycles, bicycles, on-
road or on-highway trailers, light trucks, and trucks and buses. Such
tires generally have in common that the symbol ``DOT'' must appear on
the sidewall, certifying that the tire conforms to applicable motor
vehicle safety standards. Such excluded tires may also have the
following designations that are used by the Tire and Rim Association:
[[Page 21314]]
Prefix letter designations:
P - Identifies a tire intended primarily for service on
passenger cars;
LT - Identifies a tire intended primarily for service on light
trucks; and,
ST - Identifies a special tire for trailers in highway
service.
Suffix letter designations:
TR - Identifies a tire for service on trucks, buses, and other
vehicles with rims having specified rim diameter of nominal plus
0.156 or plus 0.250;
MH - Identifies a tire for Mobile Homes;
HC - Identifies a heavy duty tire designated for use on ``HC''
15 tapered rims used on trucks, buses, and other vehicles.
This suffix is intended to differentiate among tires for light trucks,
and other vehicles or other services, which use a similar designation.
Example: 8R17.5 LT, 8R17.5 HC;
LT - Identifies light truck tires for service on trucks,
buses, trailers, and multipurpose passenger vehicles used in nominal
highway service; and
MC - Identifies tires and rims for motorcycles.
The following types of tires are also excluded from the scope:
pneumatic tires that are not new, including recycled or retreaded tires
and used tires; non-pneumatic tires, including solid rubber tires;
tires of a kind used on aircraft, all-terrain vehicles, and vehicles
for turf, lawn and garden, golf and trailer applications; and tires of
a kind used for mining and construction vehicles and equipment that
have a rim diameter equal to or exceeding 39 inches. Such tires may be
distinguished from other tires of similar size by the number of plies
that the construction and mining tires contain (minimum of 16) and the
weight of such tires (minimum 1500 pounds).
Critical Circumstances
On March 11, 2008, Petitioners alleged that there is a reasonable
basis to believe or suspect that critical circumstances exist with
respect to the antidumping investigation of OTR tires from the PRC.
Because Petitioners submitted critical circumstances allegations more
than 30 days before the scheduled date of the final determination but
later than 20 days before the preliminary determination, the Department
must issue a preliminary determination of critical circumstances within
30 days of Petitioners' submitted allegation.\15\ Section 733(e)(1) of
the Act provides that, upon receipt of a timely allegation of critical
circumstances, the Department 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.
---------------------------------------------------------------------------
\15\ See Section 351.206(c)(2)(ii) of the Department's
regulations.
---------------------------------------------------------------------------
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, section
351.206(h)(2) of the Department's regulations provides that, ``In
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.''
Section 351.206(i) of the Department's regulations defines
``relatively short period'' as generally the period beginning on the
date the proceeding begins (i.e., the date the petition is filed) and
ending at least three months later. This section provides further 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.
In determining whether the above statutory criteria have been
satisfied, we examined the following information: (1) the evidence
presented in Petitioners' March 11, 2008, submission; (2) evidence
obtained since the initiation of the less-than-fair-value (``LTFV'')
investigation (i.e., import statistics released by the U.S. Census
Bureau); and (3) the International Trade Commission's (``ITC'')
preliminary material injury determination.\16\
---------------------------------------------------------------------------
\16\ See Investigation Nos. 701-TA-448 and 731-TA-1117
(Preliminary), Certain Off-the-Road Tires From China, 72 FR 50699,
(September 4, 2007) (``ITC Preliminary Determination'').
---------------------------------------------------------------------------
In determining whether a history of dumping and material injury
exists, the Department generally considers 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
with regard to imports of subject merchandise. Petitioners made no
statement concerning a history of dumping with respect to OTR tires
from the PRC. We are not aware of any other antidumping order in the
United States or in any country on OTR tires from the PRC. Therefore,
the Department finds no history of injurious dumping of OTR tires from
the PRC pursuant to section 733(e)(1)(A)(i) of the Act.
In determining whether an importer knew, or should have known, that
the exporter was selling subject merchandise at LTFV, the Department
must rely on the facts before it at the time the determination is made.
The Department normally considers margins of 25 percent or more for
export price (``EP'') sales and 15 percent or more for constructed
export price (``CEP'') sales sufficient to impute importer knowledge of
sales at LTFV.\17\ For the mandatory respondents in this investigation,
our preliminary determination found margins of 16.35 percent for
Guizhou Tyre, 19.73 percent for Starbright, 10.98 percent for TUTRIC,
and 51.81 percent for Xugong. The separate-rate companies received a
margin of 24.75 percent based on the calculated weighted-average
margins of Guizhou Tyre, Starbright, TUTRIC and Xugong. The PRC entity
received a margin of 210.48 percent.\18\ Based on these margins, the
Department preliminarily finds that an importer knew, or should have
known, that Guizhou Tyre, Starbright, Xugong, the separate-rate
companies and the PRC entity were selling subject merchandise at
LTFV.\19\ TUTRIC's preliminary margin did not
[[Page 21315]]
meet the threshold for imputing knowledge of dumping.
---------------------------------------------------------------------------
\17\ See, e.g., Carbon and Alloy Steel Wire Rod From Germany,
Mexico, Moldova, Trinidad and Tobago, and Ukraine: Notice of
Preliminary Determination of Critical Circumstances, 67 FR 6224,
6225 (February 11, 2002) (unchanged in the final determination).
\18\ See Certain New Pneumatic Off-The-Road Tires from the
People's Republic of China: Preliminary Determination of Sales at
Less Than Fair Value and Postponement of Final Determination, 73 FR
9278 (February 20, 2008) (``Preliminary Determination'').
\19\ In this investigation, Guizhou Tyre reported making both
CEP and EP sales, and Starbright reported making only CEP sales. We
based our analysis for TUTRIC and Xugong on EP sales. Because CEP
sales constitute the vast majority of Guizhou Tyre's total U.S.
sales by quantity, we find that it is appropriate to base our
finding of knowledge of dumping on whether Guizhou Tyre's margin
exceeds 15 percent. See Notice of Final Determination of Sales at
Less Than Fair Value and Final Determination of Critical
Circumstances: Diamond Sawblades and Parts Thereof from the Republic
of Korea, 71 FR 29310 (May 22, 2006), and accompanying Issues and
Decision Memorandum at Comment 9.
---------------------------------------------------------------------------
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 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.\20\ In the
present case, the ITC preliminarily found a reasonable indication that
an industry in the United States is materially injured by imports of
OTR tires from the PRC.\21\
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\20\ See, e.g., Final Determination of Sales at Less Than Fair
Value: Certain Cut-To-Length Carbon Steel Plate from the People's
Republic of China, 62 FR 61964 (November 20, 1997).
\21\ See ITC Preliminary Determination.
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Based on the ITC's preliminary determination of material injury and
the preliminary dumping margins for Guizhou Tyre, Starbright, Xugong,
the separate-rate companies and the PRC entity, the Department
preliminarily finds that there is a reasonable basis to believe or
suspect that the importers knew, or should have known, that there was
likely to be material injury by means of sales of subject merchandise
at LTFV of subject merchandise from these respondents.
Pursuant to section 351.206(h) of the Department's regulations, in
general, we will not consider imports to be massive unless imports have
increased by at least 15 percent during a relatively ``short 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.\22\ 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''). According to
the regulations, ``if the Secretary 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
Secretary may consider a time period of not less than three months from
that earlier time.'' Imports normally will be considered massive when
imports during the comparison period have increased by 15 percent or
more compared to imports during the base period.\23\
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\22\ See section 351.206(i) of the Department's regulations.
\23\ See section 351.206(c)(2) of the Department's regulations.
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Petitioners based their allegation of critical circumstances in
this investigation on the increase in imports of OTR tires that began
with the filing of the antidumping duty petition on June 18, 2007, and
continued through the preliminary determination on February 5, 2008.
The Department's practice is to rely upon the longest period for which
information is available from the month that the petition was filed
through the date of the preliminary determination.\24\ We have chosen a
period of six months as reflective of the ``relatively short period''
commanded by the statute for determining whether imports have been
massive.\25\ In applying the six-month period, we used a base period of
July 2007 through December 2007 and a comparison period of December
2006 through May 2007. The Department requested that the respondents in
this investigation provide monthly shipment data for the period
December 2006 through December 2007.
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\24\ See Notice of Preliminary Determination of Sales at Less
Than Fair Value, Postponement of Final Determination, and
Affirmative Preliminary Determination of Critical Circumstances:
Certain Color Television Receivers From the People's Republic of
China, 68 FR 66800, 66809 (November 28, 2003) (unchanged in the
final determination).
\25\ See section 733(e)(1)(B) of the Act.
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On March 28, April 1 and April 2, 2008, the Department received
company-specific data from all four mandatory respondents. We selected
kilograms as the appropriate measurement by which to conduct this
analysis. When we compared these companies' import data during the base
period with the comparison period, we found that the volume of imports
of OTR tires from the mandatory respondents did not increase over the
base period by 15 percent and, thus, based upon section 351.206(h) of
the Department's regulations, we did not find them to be massive.\26\
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\26\ See Memorandum, ``Less-than-Fair-Value Investigation of
Certain New Pneumatic Off-The-Road Tires (``OTR Tires7rdquo;) from
the People's Republic of China (``PRC''), Affirmative Preliminary
Determination of Critical Circumstance,'' dated concurrently with
this notice.
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We did not request the monthly shipment information necessary to
determine if there were massive imports for the separate-rate
companies. To measure whether massive imports existed for purposes of
critical circumstances, we relied on the experience of the mandatory
respondents. As explained above, we compared the weighted-average
import data during the base and comparison periods for all mandatory
respondents, and determined that the increase in volume did not exceed
15 percent for any of the mandatory respondents. Therefore, based upon
section 351.206(h) of the Department's regulations, we do not find the
imports of the separate-rate companies to be massive.
Because the PRC entity did not respond to our antidumping
questionnaire, we were unable to obtain shipment data from the PRC
entity for purposes of our critical-circumstances analysis and there
is, therefore, 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.
The statute requires that certain conditions be met before the
Department may resort to the facts otherwise available. When 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 the opportunity to
remedy or explain the deficiency. Because the PRC entity did not
respond to the Department's request for information, we used facts
available, in accordance with section 776(a) of the Act, in determining
whether there were massive imports of merchandise produced by the PRC
entity.
Section 776(b) of the Act provides that if the Department finds
that the respondent ``has failed to cooperate by not acting to the best
of its ability to comply with a request for information . . .{the
Department{time} may use an inference that is adverse to the interests
of that party in selecting from among the
[[Page 21316]]
facts otherwise available.'' We have determined that, in not responding
to the Department's questionnaires, the PRC entity has not acted to the
best of its ability and an adverse inference is warranted.\27\ Thus, we
have made an adverse inference that there were massive imports from the
PRC entity over a relatively short period.
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\27\ See Preliminary Determination.
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In this case, the HTS numbers listed in the scope of the
investigation include both subject merchandise and non-subject
merchandise, and thus, we were not able to distinguish the amounts of
shipments accounted for by the mandatory and separate rate respondents
from the amount of shipments accounted for by the PRC-wide entity with
respect to subject merchandise.\28\ Accordingly, we were not able to
use the U.S. Census Bureau data to corroborate our adverse inference.
However, as the SAA states, ``The fact that corroboration may not be
practicable in a given circumstance will not prevent the agencies from
applying an adverse inference under subsection (b).''\29\
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\28\ See Notice of Final Determination of Sales at Less Than
Fair Value: Stainless Steel Sheet and Strip in Coils from Japan,
Part II, 64 FR 30574, 30585 (June 8, 1999).
\29\ See Statement of Administrative Action (SAA) accompanying
the Uruguay Round Agreements Act, H. Doc. No. 316, 103d Cong., 2d
Session, Vol. 1 (1994) at 870.
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We will issue a final determination concerning critical
circumstances for all exporters of subject merchandise from the PRC
when we issue our final determination in this investigation, which will
be not later than July 7, 2008, the first business day after the
statutory deadline of July 4, 2008.
Case briefs or other written comments may be submitted to the
Assistant Secretary for Import Administration no later than three days
after the publication of the preliminary determination of critical
circumstances in this proceeding. Rebuttal briefs limited to issues
raised in the aforementioned case briefs will be due no later than two
days after the deadline date for case briefs.
Suspension of Liquidation
With respect to the PRC entity, we will direct CBP to suspend
liquidation of all unliquidated entries of OTR tires from the PRC that
were entered, or withdrawn from warehouse, for consumption on or after
November 22, 2007, which is 90 days prior to February 20, 2008, the
date of publication in the Federal Register of our preliminary
determination in this investigation. With respect to the mandatory
respondents, Guizhou Tyre, Starbright, TUTRIC and Xugong, and the
separate-rate companies, in accordance with section 733(d) of the Act,
we will make no changes to our instructions to CBP with respect to the
suspension of liquidation of all entries of subject merchandise
entered, or withdrawn from warehouse, for consumption on or after
February 20, 2008.
This determination is issued and published in accordance with
Sections 733(f) and 777(i)(1) of the Act.
Dated: April 11, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-8575 Filed 4-18-08; 8:45 am]
BILLING CODE 3510-DS-S
