Certain New Pneumatic Off-The-Road Tires from the People's Republic of China: Affirmative Preliminary Determination of Critical Circumstances, 21312-21316 [E8-8575]

Download as PDF 21312 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. rwilkins on PROD1PC63 with NOTICES 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. VerDate Aug<31>2005 16:59 Apr 18, 2008 Jkt 214001 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 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 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 E:\FR\FM\21APN1.SGM 21APN1 Federal Register / Vol. 73, No. 77 / Monday, April 21, 2008 / Notices 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 rwilkins on PROD1PC63 with NOTICES 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’’). VerDate Aug<31>2005 16:59 Apr 18, 2008 Jkt 214001 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 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 21313 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. E:\FR\FM\21APN1.SGM 21APN1 21314 Federal Register / Vol. 73, No. 77 / Monday, April 21, 2008 / Notices 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. rwilkins on PROD1PC63 with NOTICES 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. VerDate Aug<31>2005 16:59 Apr 18, 2008 Jkt 214001 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’’). PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 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. E:\FR\FM\21APN1.SGM 21APN1 Federal Register / Vol. 73, No. 77 / Monday, April 21, 2008 / Notices rwilkins on PROD1PC63 with NOTICES 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. VerDate Aug<31>2005 16:59 Apr 18, 2008 Jkt 214001 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 Frm 00014 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \22\ See section 351.206(i) of the Department's regulations.
    \23\ See section 351.206(c)(2) of the Department's regulations.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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