[Federal Register Volume 79, Number 4 (Tuesday, January 7, 2014)]
[Notices]
[Pages 808-812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00038]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-557-815]
Welded Stainless Pressure Pipe From Malaysia: Preliminary
Determination of Sales at Less Than Fair Value, Affirmative Preliminary
Determination of Critical Circumstances, in Part, and Postponement of
Final Determination
AGENCY: Enforcement and Compliance, formerly Import Administration,
International Trade Administration, Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') preliminarily
determines that welded stainless pressure pipe (``WSPP'') from Malaysia
is being, or is likely to be, sold in the United States at less than
fair value (``LTFV''), as provided in section 733 of the Tariff Act of
1930, as amended (``the Act''). The estimated weighted-average dumping
is shown in the ``Preliminary Determination'' section of this notice.
Interested parties are invited to comment on this preliminary
determination.
DATES: Effective Date: January 7, 2014.
FOR FURTHER INFORMATION CONTACT: Charles Riggle or Erin Kearney, AD/CVD
Operations, Office IV, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
0650 or (202) 482-0167, respectively.
SUPPLEMENTARY INFORMATION:
Background
On May 16, 2013, the Department received an antidumping duty
(``AD'') petition concerning imports of WSPP from Malaysia filed in
proper form by Bristol Metals, LLC, Felker Brothers Corp., and
Outokumpu Stainless Pipe, Inc. (``Petitioners'').\1\ The Department
initiated an AD investigation of WSPP from Malaysia on June 12,
2013.\2\ On July 26, 2013, the U.S. International Trade Commission
(``ITC'') preliminarily determined that there is a reasonable
indication that an industry in the United States is materially
[[Page 809]]
injured by reason of imports of WSPP from Malaysia.\3\
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\1\ See Antidumping Duty Petitions on Welded Stainless Pressure
Pipe from Malaysia, Thailand, and Vietnam, dated May 16, 2013
(``Petition'').
\2\ See Welded Stainless Pressure Pipe From Malaysia, Thailand,
and the Socialist Republic of Vietnam: Initiation of Antidumping
Duty Investigations, 78 FR 35253 (June 12, 2013) (``Initiation
Notice'').
\3\ See Welded Stainless Steel Pressure Pipe From Malaysia,
Thailand, and Vietnam, 78 FR 45271 (July 26, 2013).
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In the Initiation Notice, we set aside a period of time for parties
to raise issues regarding product coverage and product characteristics
but no interested party submitted comments. We also stated our
intention to select respondents based on United States Customs and
Border Protection (``CBP'') data. After releasing CBP data to
interested parties on June 18, 2013, the Department received comments
regarding the CBP data and respondent selection from Petitioners on
June 21, 2013.\4\
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\4\ See Letter from Petitioners, ``Welded Stainless Steel
Pressure Pipe From Malaysia: Comments on CBP Data Release,'' dated
June 21, 2013.
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On July 19, 2013, based on its analysis of the CBP data, the
Department selected Kanzen Tetsu Sdn. Bhd. (``Kanzen'') and Pantech
Stainless & Alloy Industries Sdn. Bhd. (``Pantech'') as mandatory
respondents.\5\ On July 23, 2013, the Department issued the AD
questionnaire to Kanzen and Pantech. On August 27, 2013, after
requesting and receiving extensions to its questionnaire deadlines,
Pantech informed the Department that it would not be participating in
the investigation of WSPP from Malaysia.\6\ Kanzen also requested and
received extensions of its questionnaire response deadlines, but Kanzen
submitted no questionnaire responses.
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\5\ See Memorandum to Christian Marsh, Deputy Assistant
Secretary for Antidumping and Countervailing Duty Operations, Office
4, ``Antidumping Duty Investigation of Welded Stainless Pressure
Pipe from Malaysia: Respondent Selection Memorandum,'' dated July
19, 2013.
\6\ See Letter from Pantech, ``Welded Stainless Steel Pipe from
Malaysia,'' dated August 27, 2013.
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On August 5, 2013, Superinox Pipe Industry Sdn. Bhd. filed a
submission with the Department stating that it wanted to participate in
the investigation as a voluntary respondent. Between August 27 and
September 9, 2013, Superinox Pipe Industry Sdn. Bhd. and its
affiliates, Superinox International Sdn. Bhd., and Tatt Giap Hardware
Sdn. Bhd. (collectively, ``Superinox''), submitted responses to
sections A, B, and C of the Department's questionnaire, which were
filed by the deadlines originally given to Kanzen and Pantech before
they decided not to participate in the investigation. Based on an
analysis of the CBP data used to select the original mandatory
respondents, the Department found that the next largest producer or
exporter was Superinox International Sdn. Bhd. On September 25, 2013,
the Department selected Superinox International Sdn. Bhd. as the third
mandatory respondent.\7\
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\7\ See Memorandum to Christian Marsh, Deputy Assistant
Secretary for Antidumping and Countervailing Duty Operations, Office
4, ``Antidumping Duty Investigation of Welded Stainless Pressure
Pipe from Malaysia: Selection of Additional Mandatory Respondent,''
dated September 25, 2013.
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On October 25, 2013, Petitioners requested that the Department make
a finding that critical circumstances exist with respect to U.S.
imports of WSPP from Malaysia and order suspension of liquidation 90
days prior to the date of its preliminary determination.
On November 18, 2013, Superinox requested a postponement of the
final determination and an extension of provisional measures.\8\ On
November 21, 2013, Petitioners requested a postponement of the final
determination.\9\ On December 27, 2013, Superinox withdrew from
participating in the investigation and no longer consented to the use
of its business proprietary and public information in this
investigation.\10\
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\8\ See Submission from Superinox, ``Welded Stainless Steel Pipe
from Malaysia; Request to Extend the Final Determination'' dated
November 18, 2013.
\9\ See Submission from Petitioners, ``Welded Stainless Steel
Pressure Pipe from Malaysia: Contingent Request for Postponement of
Final Determination'' dated November 21, 2013.
\10\ See Submission from Superinox, ``Welded Stainless Steel
Pipe from Malaysia; Withdrawal from Participation'' dated December
27, 2013.
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Period of Investigation
The period of investigation (``POI'') is April 1, 2012, through
March 31, 2013. This period corresponds to the four most recent fiscal
quarters prior to the month of the filing of the petition, which was
May 2013.\11\
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\11\ See 19 CFR 351.204(b)(1).
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Postponement of Preliminary Determination
On September 19, 2013, Petitioners made a timely request, which
they amended on September 24, 2013, for a 50-day postponement of the
preliminary determination pursuant to section 733(c)(1)(A) of the Act
and 19 CFR 351.205(e).\12\
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\12\ See Welded Stainless Pressure Pipe From Malaysia, Thailand,
and the Socialist Republic of Vietnam: Postponement of Preliminary
Determinations of Antidumping Duty Investigations, 78 FR 62583
(October 22, 2013). The Department notified interested parties of
the postponement of the preliminary determination more than twenty
days before the original deadline for issuing the preliminary
determination.
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As explained in the memorandum from the Assistant Secretary for
Enforcement and Compliance, the Department exercised its discretion to
toll deadlines for the duration of the closure of the Federal
Government from October 1, through October 16, 2013.\13\ Therefore, all
deadlines in this segment of the proceeding have been extended by 16
days. If the new deadline falls on a non-business day, in accordance
with the Department's practice, the deadline will become the next
business day. Accordingly, the revised deadline for the preliminary
determination of this investigation is now December 30, 2013.\14\
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\13\ See Memorandum for the Record from Paul Piquado, Assistant
Secretary for Enforcement and Compliance, ``Deadlines Affected by
the Shutdown of the Federal Government,'' dated October 18, 2013.
\14\ The deadline of December 28, 2013, falls on a Saturday;
therefore, the deadline is the next business day, i.e. Monday,
December 30, 2013.
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Postponement of Final Determination and Extension of Provisional
Measures
Pursuant to section 735(a)(2) of the Act, on November 18 and
November 21, 2013, Superinox and Petitioners, respectively, requested
that the Department postpone the final determination by 60 days (135
days after publication of the preliminary determination), and Superinox
requested that the Department extend the provisional measures.\15\
Section 735(a)(2) of the Act provides that a final determination may be
postponed until not later than 135 days after the date of the
publication of the preliminary determination if, in the event of an
affirmative preliminary determination, a request for such postponement
is made by exporters who account for a significant proportion of
exports of the subject merchandise, or in the event of a negative
preliminary determination, a request for such postponement is made by
the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2),
require that requests by respondents for postponement of a final
determination be accompanied by a request for extension of provisional
measures from a four-month period to not more than six months.
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\15\ See Submission from Superinox, ``Welded Stainless Steel
Pipe from Malaysia; Request to Extend the Final Determination,''
dated November 18, 2013; see also Submission from Petitioners,
``Welded Stainless Steel Pressure Pipe from Malaysia: Contingent
Request for Postponement of Final Determination,'' dated November
21, 2013.
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In accordance with sections 735(a)(2) and 733(d) of the Act and 19
CFR 351.210(b) and (e), because: (1) our preliminary determination is
affirmative; (2) the exporter requesting the postponement, Superinox,
accounts for a significant proportion of exports of the subject
merchandise; and (3) no compelling reasons for denial of the
postponement exist, we are postponing
[[Page 810]]
the final determination until no later than 135 days after the
publication of the preliminary determination notice in the Federal
Register, and we are extending provisional measures from four months to
a period not to exceed six months. We are also extending the
application of the provisional measures prescribed under section 733(d)
of the from a four-month period to not more than a six-month period.
Scope of the Investigation
The merchandise covered by this investigation is circular welded
austenitic stainless pressure pipe not greater than 14 inches in
outside diameter. For purposes of this investigation, references to
size are in nominal inches and include all products within tolerances
allowed by pipe specifications. This merchandise includes, but is not
limited to, the American Society for Testing and Materials (ASTM) A-312
or ASTM A-778 specifications, or comparable domestic or foreign
specifications. ASTM A-358 products are only included when they are
produced to meet ASTM A-312 or ASTM A-778 specifications, or comparable
domestic or foreign specifications.
Excluded from the scope are: (1) Welded stainless mechanical
tubing, meeting ASTM A-554 or comparable domestic or foreign
specifications; (2) boiler, heat exchanger, superheater, refining
furnace, feedwater heater, and condenser tubing, meeting ASTM A-249,
ASTM A-688 or comparable domestic or foreign specifications; and (3)
specialized tubing, meeting ASTM A269, ASTM A-270 or comparable
domestic or foreign specifications.
The subject imports are normally classified in subheadings
7306.40.5005, 7306.40.5040, 7306.40.5062, 7306.40.5064, and
7306.40.5085 of the Harmonized Tariff Schedule of the United States
(HTSUS). They may also enter under HTSUS subheadings 7306.40.1010,
7306.40.1015, 7306.40.5042, 7306.40.5044, 7306.40.5080, and
7306.40.5090. The HTSUS subheadings are provided for convenience and
customs purposes only; the written description of the scope of this
investigation is dispositive.
Scope Comments
In accordance with the preamble to the Department's
regulations,\16\ in our Initiation Notice we set aside a period of time
for parties to raise issues regarding product coverage, and encouraged
all parties to submit comments within 20 calendar days of publication
of the Initiation Notice. No interested party submitted comments.
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\16\ See Antidumping Duties; Countervailing Duties; Final Rule,
62 FR 27296, 27323 (May 19, 1997).
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Adverse Facts Available
Because the mandatory respondents Kanzen, Pantech, and Superinox
either failed to respond to the Department's questionnaire or informed
the Department that they would no longer participate in the
investigation, we have preliminarily determined to apply facts
otherwise available with an adverse inference to these respondents
pursuant to sections 776(a) and (b) of the Act.\17\ Although it
requested that its information be removed from the record, we have
retained Superinox's business proprietary and public information on the
record of this investigation in order to prevent the manipulation of
the final weighted-average dumping margins for the mandatory
respondents, which are the largest three exporters of the merchandise
under consideration. We have based the adverse facts available
(``AFA'') rate for the three mandatory respondents on this
information.\18\ As AFA, we assigned the three mandatory respondents a
rate of 167.11 percent.
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\17\ See memorandum from Abdelali Elouaradia, Director, Office
IV Antidumping and Countervailing Duty Operations to Christian
Marsh, Deputy Assistant Secretary for Antidumping and Countervailing
Duty Operations regarding ``Welded Stainless Pressure Pipe from
Malaysia: Application of Facts Available and Selection of Adverse
Facts Available Rate'' dated concurrently with this notice.
\18\ See memorandum from Abdelali Elouaradia, Director, Office
IV Antidumping and Countervailing Duty Operations to Christian Marsh
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Operations regarding ``Welded Stainless Pressure Pipe from Malaysia:
Retention of Superinox's Data'' dated concurrently with this notice.
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Critical Circumstances
On October 25, 2013, Petitioners requested that the Department make
a finding that critical circumstances exist with respect to U.S.
imports of WSPP from Malaysia. Petitioners alleged that U.S. importers
of WSPP from Malaysia should have known that exporters were selling
subject merchandise in the United States at less than fair value and
there was likely to be material injury by reason of such sales because
the weighted-average dumping margins that will be assigned as AFA in
this investigation will likely exceed 25 percent, the level required to
impute knowledge of dumping, and the ITC preliminarily found that an
industry in the United States is materially injured by such imports.
Moreover, Petitioners allege that there have been massive imports of
the subject merchandise into the United States over a relatively short
period, which is the second criterion for finding critical
circumstances, because there was an 87.6 percent increase in the volume
of imports in the three months following the filing of the Petition
compared to the volume of imports during the three months immediately
preceding the filing of the Petition.
Section 733(e)(1) of the Act provides that the Department will
determine that critical circumstances exist if 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
subject merchandise over a relatively short period.
The Department normally considers weighted-average dumping margins
of 25 percent or more, for export price sales, or 15 percent or more,
for constructed export price sales, sufficient to impute knowledge of
the exporter selling the subject merchandise at less than its fair
value.\19\ We have assigned Kanzen, Pantech, and Superinox a
preliminary weighted-average dumping margin based on total AFA equal to
167.11 percent, which provides a sufficient basis for imputing
knowledge of sales of subject merchandise at less than fair value to
the importers.
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\19\ See Notice of Preliminary Determination of Sales at Less
Than Fair Value: Certain Lined Paper Products from Indonesia, 71 FR
15162, 15166 (March 27, 2006), unchanged in Final Determination of
Sales at Less Than Fair Value and Affirmative Final Determination of
Critical Circumstances: Certain Lined Paper Products from Indonesia,
71 FR 47171 (August 16, 2006).
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In determining whether the 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.\20\ If the ITC finds a reasonable indication
of material injury to the relevant U.S. industry, the Department will
determine that a reasonable basis exists to imputer importer knowledge
[[Page 811]]
that material injury is likely by reason of such imports. Here the ITC
preliminarily found that there is a reasonable indication that an
industry in the United States is materially injured by reason of
imports of WSPP from Malaysia.\21\ Therefore, the ITC's preliminary
injury determination in this investigation is sufficient to impute
knowledge that material injury is likely.
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\20\ See Final Determination of Sales at Less Than Fair Value
and Affirmative Determination of Critical Circumstances: Small
Diameter Graphite Electrodes from the People's Republic of China, 74
FR 2049, 2053 (January 14, 2009) (``Graphite Electrodes'') (``We
also continue to find the ITC's preliminary injury determination in
the instant investigation is sufficient to impute knowledge of
material injury to importers.'').
\21\ See Welded Stainless Steel Pressure Pipe From Malaysia,
Thailand, and Vietnam, 78 FR 45271 (July 26, 2013).
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Furthermore, because the mandatory respondents are not
participating in this investigation, consistent with Department
practice, we have also based our ``massive imports'' determination on
AFA.\22\ Specifically, we have made an adverse inference that imports
from these three respondents were massive during the relevant time
period.
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\22\ See, e.g., Graphite Electrodes 74 FR 2049, 2052-2053 and
accompanying Issues and Decision Memorandum at Comment 4 (stating
that ``we have based our determination of whether there were massive
imports with respect to the Fangda Group on AFA . . . the Department
may employ adverse inferences in selecting from among the facts
available `to ensure that the party does not obtain a more favorable
result by failing to cooperate fully . . . 'To ensure that the
Fangda Group does not obtain a more favorable result by failing to
cooperate, for this final determination, we continue to find, as
AFA, that imports of subject merchandise were massive for the Fangda
Group.'').
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However, we have preliminarily found that critical circumstances do
not exist with respect to all other exporters or producers of WSPP from
Malaysia because we do not find the criterion of section 733(e)(1)(A)
of the Act satisfied with respect to all other exporters or producers.
Due to the absence of cooperative mandatory respondents, we have
calculated the weighted-average dumping margin for ``all-other''
exporters or producers by averaging the dumping margins alleged in the
Petition, as adjusted at initiation. The average of the Petition's
dumping margins is 22.70 percent. Since the preliminary ``all-others''
rate is not greater than 25 percent, we preliminarily find that this
weighted-average dumping margin does not provide a sufficient basis for
imputing knowledge of sales of subject merchandise at less than fair
value to importers with respect to exporters or producers in the all-
others group.\23\
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\23\ See memorandum from Erin Kearney International Trade
Analyst, Office IV AD/CVD Operations to Abdelali Elouaradia,
Director, Office IV AD/CVD Operations regarding ``Welded Stainless
Pressure Pipe from Malaysia: Critical Circumstances'' dated
concurrently with this notice.
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Preliminary Determination
The preliminarily weighted-average dumping margins are as follows:
------------------------------------------------------------------------
Weighted-
average
Exporter or producer dumping margin
(percent)
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Superinox Pipe Industry Sdn. Bhd./Superinox 167.11
International Sdn. Bhd.................................
Kanzen Tetsu Sdn. Bhd................................... 167.11
Pantech Stainless & Alloy Industries Sdn. Bhd........... 167.11
All Others.............................................. 22.70
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All Others Rate
Section 735(c)(5)(A) of the Act provides that the estimated ``all
others'' rate shall be an amount equal to the weighted average of the
estimated weighted-average dumping margins established for exporters or
producers individually investigated, excluding rates that are zero, de
minimis or determined entirely under section 776 of the Act. The
weighted-average dumping margin assigned to the three mandatory
respondents was determined entirely under section 776 of the Act.
Pursuant to section 735(c)(5)(B) of the Act, if the estimated weighted-
average dumping margins established for all exporters and producers
individually examined are zero, de minimis or determined based entirely
under section 776 of the Act, the Department may use any reasonable
method to establish the estimated weighted-average dumping margin for
all other producers or exporters. Consistent with our practice, we
calculated an all-others rate equal to a simple average of the petition
rates,\24\ as listed in the Federal Register notice announcing the
initiation of this investigation.\25\
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\24\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value: Raw Flexible Magnets From Taiwan, 73 FR 39673,
39674 (July 10, 2008).
\25\ See Initiation Notice.
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Disclosure and Public Comment
We will disclose the calculations used to determine the AFA rate to
parties in this proceeding within five days of the date of publication
of this notice in accordance with 19 CFR 351.224(b).
Case briefs or other written comments may be submitted to the
Assistant Secretary for Enforcement and Compliance no later than 21
days after the date of publication of this notice in the Federal
Register, and rebuttal briefs, limited to issues raised in case briefs,
may be submitted no later than five days after the deadline date for
case briefs.\26\ A table of contents, list of authorities used, and an
executive summary of issues should accompany any briefs submitted to
the Department.\27\ This summary should be limited to five pages total,
including footnotes. Interested parties who wish to request a hearing,
or to participate if one is requested, must submit a written request
for a hearing to the Assistant Secretary for Enforcement and
Compliance, U.S. Department of Commerce within 30 days after the date
of publication of this notice.\28\ Hearing requests should contain the
party's name, address, and telephone number, the number of participants
in the hearing, and a list of the issues to be discussed. If a request
for a hearing is made, the Department intends to hold the hearing at
the U.S. Department of Commerce, 14th Street and Constitution Avenue
NW, Washington, DC 20230, at a time and location to be determined.
Parties should confirm the date, time, and location of the hearing two
days before the scheduled date. With limited exceptions, all documents
submitted to the Department must be filed electronically using IA
ACCESS. An electronically filed document must be received successfully
in its entirety by the Department's electronic records system, IA
ACCESS, by 5:00 p.m. Eastern Standard Time on the date it is due.
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\26\ See 19 CFR 351.309.
\27\ See 19 CFR 351.309(c)(2).
\28\ See 19 CFR 351.310(c).
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Suspension of Liquidation
As noted above, the Department found that critical circumstances
exist with respect to imports of the merchandise under consideration
from SI/SPI, Kanzen, and Pantech. Therefore, in accordance with section
733(e)(2) of the Act, we will direct CBP to suspend liquidation of all
entries of WSPP from Malaysia from SI/SPI, Kanzen, and
[[Page 812]]
Pantech that are entered, or withdrawn from warehouse, for consumption
on or after the date 90 days prior to the date of publication of this
notice in the Federal Register and require a cash deposit for such
entries as noted below. Since we did not find that critical
circumstances exist with respect to exporters or producers in the all-
others group, we will instruct CBP to suspend liquidation of all other
entries of WSPP from Malaysia entered, or withdrawn from warehouse, for
consumption on or after the date of publication of this notice in the
Federal Register.
Pursuant to section 733(d) of the Act and 19 CFR 351.205(d), we
will instruct CBP to require cash deposits \29\ equal to the weighted-
average dumping margins indicated in the chart above. These suspension
of liquidation instructions will remain in effect until further notice.
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\29\ See Modification of Regulations Regarding the Practice of
Accepting Bonds During the Provisional Measures Period in
Antidumping and Countervailing Duty Investigations, 76 FR 61042
(October 3, 2011).
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International Trade Commission (``ITC'') Notification
In accordance with section 733(f) of the Act, we will notify the
ITC of our preliminary affirmative determination of sales at LTFV.
Because the preliminary determination in this proceeding is
affirmative, section 735(b)(2) of the Act requires that the ITC make
its final determination as to whether the domestic industry in the
United States is materially injured, or threatened with material
injury, by reason of imports of WSPP from Malaysia before the later of
120 days after the date of this preliminary determination or 45 days
after our final determination. Because we are postponing the deadline
for our final determination to 135 days from the date of the
publication of this preliminary determination, as discussed above, the
ITC will make its final determination no later than 45 days after our
final determination.
This determination is issued and published in accordance with
sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
Dated: December 30, 2013.
Christian Marsh,
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Operations.
[FR Doc. 2014-00038 Filed 1-6-14; 8:45 am]
BILLING CODE 3510-DS-P