[Federal Register Volume 80, Number 213 (Wednesday, November 4, 2015)]
[Notices]
[Pages 68293-68295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28112]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-471-807]
Certain Uncoated Paper From Portugal: Preliminary Affirmative
Determination of Critical Circumstances in the Antidumping Duty
Investigation
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
DATES: Effective date: November 4, 2015.
FOR FURTHER INFORMATION CONTACT: Kabir Archuletta, AD/CVD Operations,
Office V, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
2593.
Background
On August 26, 2015, the Department of Commerce (``the Department'')
published its preliminary determination in the antidumping duty
investigation of certain uncoated paper from Portugal.\1\ On September
28, 2015, Petitioners \2\
[[Page 68294]]
filed a timely critical circumstances allegation, pursuant to 19 CFR
351.206, alleging that critical circumstances exist with respect to
imports of the merchandise under consideration.\3\ On September 29,
2015, the Department issued a letter to Portucel S.A. (``Portucel''),
the sole respondent in this investigation, requesting monthly shipment
data from July 2014 through August 2015.\4\ On October 6, 2015,
Portucel filed its response to the Department's request for monthly
shipment data.\5\
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\1\ See Certain Uncoated Paper From Portugal: Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination, 80 FR 51777 (August 26, 2015) (``Preliminary
Determination'').
\2\ Petitioners are United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union; Domtar Corporation; Finch Paper LLC; P.H.
Glatfelter Company; and Packaging Corporation of America
(collectively ``Petitioners'').
\3\ See Letter to the Secretary of Commerce from Petitioners
``Petitioners' Critical Circumstances Allegation'' (September 28,
2015) (``Petitioners' Critical Circumstances Allegation'').
\4\ See Letter to Portucel from Catherine Bertrand, Program
Manager, Office V ``Request for Monthly Quantity and Value Shipment
Data'' (September 29, 2015).
\5\ See Letter to Catherine Bertrand, Program Manager, Office V,
from Portucel ``Portucel's Monthly Quantity and Value Shipment
Data'' (October 6, 2015).
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In accordance with 19 CFR 351.206(c)(1), when a critical
circumstances allegation is filed 30 days or more before the scheduled
date of the final determination, the Department will issue a
preliminary finding whether there is a reasonable basis to believe or
suspect that critical circumstances exist. Because the critical
circumstances allegation in this case was submitted after the
preliminary determination was published, the Department must issue its
preliminary findings of critical circumstances no later than 30 days
after the allegation was filed.\6\
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\6\ See 19 CFR 351.206(c)(2)(ii).
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Legal Framework
Section 733(e)(1) of the Tariff Act of 1930, as amended (``the
Act''), provides that the Department, upon receipt of a timely
allegation of critical circumstances, will determine whether there is a
reasonable basis to believe or suspect that: (A)(i) There is a history
of dumping and material injury by reason of dumped imports in the
United States or elsewhere of the subject merchandise, or (ii) the
person by whom, or for whose account, the merchandise was imported knew
or should have known that the exporter was selling the subject
merchandise at less than its fair value and that there was likely to be
material injury by reason of such sales; and (B) there have been
massive imports of the subject merchandise over a relatively short
period.
Further, 19 CFR 351.206(h)(1) provides that, in determining whether
imports of the subject merchandise have been ``massive,'' the
Department normally will examine: (i) The volume and value of the
imports; (ii) seasonal trends; and (iii) the share of domestic
consumption accounted for by the imports. In addition, 19 CFR
351.206(h)(2) provides that, ``{i{time} n general, unless the imports
during the `relatively short period' . . . have increased by at least
15 percent over the imports during an immediately preceding period of
comparable duration, the Secretary will not consider the imports
massive.'' 19 CFR 351.206(i) defines ``relatively short period''
generally as the period starting on the date the proceeding begins
(i.e., the date the petition is filed) and ending at least three months
later. This section of the regulations further provides that, if the
Department ``finds that importers, or exporters or producers, had
reason to believe, at some time prior to the beginning of the
proceeding, that a proceeding was likely,'' then the Department may
consider a period of not less than three months from that earlier time.
Critical Circumstances Allegation
In their allegation, Petitioners contend that, based on the dumping
margins assigned by the Department in the Preliminary Determination,
importers knew or should have known that the merchandise under
consideration was being sold at less than fair value (``LTFV'').\7\
Petitioners also contend that, based on the preliminary determination
of injury by the U.S. International Trade Commission (``ITC''), there
is a reasonable basis to impute importers' knowledge that material
injury is likely by reason of such imports.\8\ Finally, as part of
their allegation and pursuant to 19 CFR 351.206(h)(2), Petitioners
submitted import statistics for the HTS numbers included in the scope
for the period between August 2014 and July 2015 as evidence of massive
imports of uncoated paper from Portugal during a relatively short
period.\9\
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\7\ See Petitioners' Critical Circumstances Allegation, dated
September 28, 2015, at 2-4.
\8\ Id.
\9\ Id. at 4-6, Exhibit 1.
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Analysis
The Department's normal practice in determining whether critical
circumstances exist pursuant to the statutory criteria has been to
examine evidence available to the Department, such as: (1) The evidence
presented in Petitioners' critical circumstances allegation; (2) import
statistics released by the ITC; and (3) shipment information submitted
to the Department by the respondents selected for individual
examination.\10\ As further provided below, in determining whether the
above statutory criteria have been satisfied in this case, we have
examined: (1) The evidence presented in Petitioners' September 28,
2015, allegation; (2) information obtained since the initiation of this
investigation; and (3) the ITC's preliminary injury determination.
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\10\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Affirmative Final Determination of Critical
Circumstances: Circular Welded Carbon Quality Steel Pipe from the
People's Republic of China, 73 FR 31970, 31972-73 (June 5, 2008)
(``Carbon Steel Pipe''); Final Determination of Sales at Less Than
Fair Value and Affirmative Determination of Critical Circumstances:
Small Diameter Graphite Electrodes from the People's Republic of
China, 74 FR 2049, 2052-53 (January 14, 2009) (``SDGE'').
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Section 733(e)(1)(A)(i) of the Act: History of Dumping and Material
Injury by Reason of Dumped Imports in the United States or Elsewhere of
the Subject Merchandise
In determining whether a history of dumping and material injury
exists, the Department generally has considered current or previous
antidumping duty orders on subject merchandise from the country in
question in the United States and current orders in any other
country.\11\ In this case, the current investigation of the subject
merchandise marks the first instance that the Department has examined
whether the goods are dumped into the United States. As a result, the
Department previously has not imposed an antidumping duty order on the
subject merchandise. Moreover, the Department is not aware of any
antidumping duty order on subject merchandise from Portugal in another
country. Therefore, the Department finds no history of injurious
dumping of the subject merchandise pursuant to section 733(e)(1)(A)(i)
of the Act.
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\11\ See Carbon Steel Pipe, 73 FR at 31972-73; see also SDGE, 74
FR 2052-53.
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Section 733(e)(1)(A)(ii): The Importer Knew or Should Have Known That
Exporter Was Selling at Less Than Fair Value and That There Was Likely
To Be Material Injury
In determining whether an importer knew or should have known that
the exporter was selling subject merchandise at LTFV and that there was
likely to be material injury by reason of such sales, the Department
must rely on the facts before it at the time the determination is made.
The Department generally bases its decision with respect to knowledge
on the margins calculated
[[Page 68295]]
in the preliminary determination and the ITC's preliminary injury
determination.
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.\12\ Portucel had only CEP sales and the Department
preliminarily determined a margin of 29.53 percent for Portucel, which
was also assigned as the ``all others'' rate.\13\ Therefore, because
the preliminary margins are greater than 15 percent for all producers
and exporters, we preliminarily find, with respect to all producers and
exporters, that there is a reasonable basis to believe or suspect that
importers knew, or should have known, that exporters were selling the
merchandise under consideration at LTFV.
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\12\ See, e.g., Carbon and Alloy Steel Wire Rod From Germany,
Mexico, Moldova, Trinidad and Tobago, and Ukraine: Preliminary
Determination of Critical Circumstances, 67 FR 6224, 6225 (February
11, 2002); Affirmative Preliminary Determination of Critical
Circumstances: Magnesium Metal from the People's Republic of China,
70 FR 5606, 5607 (February 3, 2005).
\13\ See Preliminary Determination, 80 FR at 51778.
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In determining whether an importer knew or should have known that
there was likely to be material injury caused by reason of such
imports, the Department normally will look to the preliminary injury
determination of the ITC.\14\ If the ITC finds a reasonable indication
of present material injury to the relevant U.S. industry, the
Department will determine that a reasonable basis exists to impute
importer knowledge that material injury is likely by reason of such
imports.\15\ Here, the ITC found that ``there is a reasonable
indication that an industry in the United States is materially injured
by reason of imports from Australia, Brazil, China, Indonesia, and
Portugal of certain uncoated paper, provided for in subheadings 4802.56
and 4802.57 of the Harmonized Tariff Schedule of the United States. . .
.'' \16\
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\14\ See, e.g., Certain Potassium Phosphate Salts from the
People's Republic of China: Preliminary Affirmative Determination of
Critical Circumstances in the Antidumping Duty Investigation, 75 FR
24572, 24573 (May 5, 2010) (``Salt Critical Circumstances Prelim'').
\15\ See, e.g., Carbon and Alloy Steel Wire Rod From Germany,
Mexico, Moldova, Trinidad and Tobago, and Ukraine: Preliminary
Determination of Critical Circumstances, 67 FR 6224, 6225 (February
11, 2002); Affirmative Preliminary Determination of Critical
Circumstances: Magnesium Metal from the People's Republic of China,
70 FR 5606, 5607 (February 3, 2005).
\16\ See Certain Uncoated Paper from Australia, Brazil, China,
Indonesia, and Portugal, Investigation Nos. 701-TA-528-529 and 731-
TA-1264-1268 (Preliminary), 80 FR 13890 (March 17, 2015).
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Section 733(e)(1)(B): Whether There Have Been Massive Imports of the
Subject Merchandise Over a Relatively Short Period
Pursuant to 19 CFR 351.206(h)(2), the Department will not consider
imports to be massive unless imports in the comparison period have
increased by at least 15 percent over imports in the base period. The
Department normally considers a ``relatively short period'' as the
period beginning on the date the proceeding begins and ending at least
three months later.\17\ For this reason, the Department normally
compares the import volumes of the subject merchandise for at least
three months immediately preceding the filing of the petition (i.e.,
the ``base period'') to a comparable period of at least three months
following the filing of the petition (i.e., the ``comparison
period'').\18\
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\17\ See 19 CFR 351.206(i).
\18\ See Salt Critical Circumstances Prelim, 75 FR at 24574.
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In their September 28, 2015 allegation, Petitioners included U.S.
import data collected from the ITC's Dataweb.\19\ Specifically,
Petitioners provided data for a six-month base period (August 2014
through January 2015) and a six-month comparison period (February 2015
through July 2015), the most recent data available at the time of
filing, in showing whether imports were massive.\20\ In response to a
request by the Department, on October 6, 2015, Portucel submitted
monthly shipment data for merchandise shipped from Portucel to the
United States for a seven-month base period (July 2014 through January
2015) and a seven-month comparison period (February 2015 through August
2015).\21\ The quantity of Portucel's shipments of uncoated paper
increased in the comparison period by 18.6 percent over the base
period.\22\ Our practice with respect to companies subject to the ``all
others'' rate is to base our critical circumstances analysis on the
experience of the investigated companies.\23\
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\19\ See Petitioners' Critical Circumstances Allegation at 4-5,
Exhibit 1.
\20\ Id. 5, Exhibit 1. At the time of filing, import data was
available only through July 2015.
\21\ See Portucel's Monthly Quantity and Value Shipment Data,
filed on October 6, 2015.
\22\ See Memoradum to the File from Ryan Mullen, International
Trade Analyst, Office V, through Catherine Bertrand, Program
Manager, Office V ``Antidumping Duty Investigation of Certain
Uncoated Paper from Portugal: Import Statistics for Critical
Circumstances Analysis'' at Exhibit 1.
\23\ See, e.g. Notice of Preliminary Determination of Sales at
Less Than Fair Value: Sodium Nitrate from the Federal Republic of
Germany, 73 FR 21909, 21912 (April 23, 2008), unchanged in Notice of
Final Determination of Sales at Less Than Fair Value: Sodium Nitrate
from the Federal Republic of Germany, 73 FR 38986, 38987 (July 8,
2008), and accompany Issues and Decision Memorandum at Comment 2.
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Preliminary Affirmative Determination of Critical Circumstances
Record evidence indicates that importers of uncoated paper knew, or
should have known, that exporters were selling the merchandise at LTFV,
and that there was likely to be material injury by reason of such
sales. In addition, we have found that Portucel had massive imports
during a relatively short period. Therefore, in accordance with section
733(e)(1) of the Act, we preliminarily find that there is reason to
believe or suspect that critical circumstances exist for imports of the
merchandise under consideration from Portucel and companies subject to
the all others rate.\24\
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\24\ See section 733(f) of the Act; 19 CFR 351.206(c)(2)(ii).
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Suspension of Liquidation
In accordance with section 733(e)(2)(A) of the Act, we are
directing the U.S. Customs and Border Protection to suspend liquidation
of any unliquidated entries of the merchandise under consideration from
Portugal entered, or withdrawn from warehouse for consumption, on or
after May 27, 2015, which is 90 days prior to the date of publication
of the Preliminary Determination in the Federal Register.
ITC Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of our preliminary affirmative critical circumstances
determination.
This determination is published pursuant to sections 733(f) and
777(i) of the Act and 19 CFR 351.206(c)(2)(ii).
Dated: October 28, 2015.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2015-28112 Filed 11-3-15; 8:45 am]
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