[Federal Register Volume 59, Number 164 (Thursday, August 25, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-20931] [[Page Unknown]] [Federal Register: August 25, 1994] ----------------------------------------------------------------------- INTERNATIONAL TRADE COMMISSION Iron Construction Castings From Canada; Dismissal of Request for Institution of A Section 751(b) Review Investigation AGENCY: International Trade Commission. ACTION: Dismissal of a request to institute a section 751(b) review investigation concerning the Commission's affirmative determination in investigation No. 731-TA-263 (Final), Iron Construction Castings from Canada. ----------------------------------------------------------------------- SUMMARY: On August 8, 1994, the Commission determined, pursuant to section 751(b) of the Tariff Act of 1930 (the ``Act'')(19 U.S.C. 1675(b)) and Commission rule 207.45 (19 CFR 207.45), that the subject request does not show changed circumstances sufficient to warrant institution of an investigation to review the Commission's affirmative determination in investigation No. 731-TA-263 (Final), regarding iron construction castings from Canada. Iron construction castings are provided for in subheading 7325.10.00 of the Harmonized Tariff Schedule of the United States. FOR FURTHER INFORMATION CONTACT: Vera Libeau (202-205-3176), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205- 1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. Information can also be obtained by calling the Office of Investigations' remote bulletin board system for personal computers at 202-205-1895 (N,8,1). BACKGROUND INFORMATION: On March 5, 1986, the Commission issued an affirmative injury determination with respect to investigation No. 731- TA-263 (Final), Iron Construction Castings from Canada, 51 F.R. 7646 (March 5, 1986), following the U.S. Department of Commerce's final determination that imports of the subject merchandise were being sold at less than fair value (LTFV). 51 FR 2412 (Jan. 16, 1986). The Commission's determination was based on a cumulative assessment of subject imports from Canada with subject imports from Brazil, the People's Republic of China (China), and India, which Commerce also determined were being sold at LTFV. 51 FR 9477 (March 19, 1986). Commerce issued antidumping orders covering subject imports from all four countries. On May 20, 1994, the Commission received a petition, filed pursuant to section 751(b) of the Act, to review its final injury determination with respect to Canada in light of changed circumstances. The petition was filed by counsel on behalf of Associated Foundry, Ltd.; Laperle Foundry Division of Fonderies Bibby-Ste-Croix; Fonderies Bibby-Ste- Croix, Inc.; and Titan Foundry, Ltd.--producers of the subject products in Canada. The alleged changed circumstances include: (1) an exclusion of foreign producers from an estimated 60-75 percent of the U.S. market due to a 1991 extension of Buy America provisions to iron products used in highway construction; (2) an exclusion of foreign producers from an additional 2 percent of the market due to a 1992 extension of Buy America provisions to iron products used in airport and airway construction; and (3) an effective exclusion of foreign producers from an estimated 12 percent of the market for heavy iron castings due to Customs' 1986 enforcement of a 1984 statutory requirement governing the marking of manhole covers with regard to country of origin. Pursuant to section 207.45(b)(2) of the Commission's Rules of Practice and Procedure (19 CFR 207.45(b)(2)), the Commission published a notice in the Federal Register requesting comments as to whether the alleged changed circumstances warranted the institution of a review investigation. 59 FR 29619 (June 8, 1994). Because the alleged changed circumstances related to the U.S. market and were not unique to Canadian imports, the Commission also sought comment on whether it should self-initiate a review regarding imports of iron construction castings from Brazil, India, and China. Comments were received both in opposition to and in favor of the petition. Summarizing the impact of the alleged changed circumstances in a supplemental comment to their petition, the petitioners estimated that only 18-38 percent of the total U.S. castings market is open to Canadian (and presumably other) import competition. Petitioners' Comments at 8. The petitioners maintain that with such a substantial portion of the United States market ``closed'' to Canadian producers, domestic producers are effectively protected from injury and would continue to be protected if the order for Canada were to be revoked. Id. at 9-10. Counsel on behalf of the Castings Panel of the Engineering Export Promotion Council of India and the exporters of castings from India urge the Commission to review not only its determination with respect to Canada but also its determination with respect to India; however, they offer no arguments for changed circumstances other than those of the petitioners. Indian Parties' Comments at 2-3. In opposition to the petition, comments were filed by counsel on behalf of the U.S. producers of the subject merchandise. The U.S. producers take issue with the petitioners regarding (1) the size of the market affected by these two Buy America provisions, claiming that there is no evidence of widespread implementation of these provisions at either the State or local level and that the share of the market so affected is on the order of 17 percent, rather than 62-82 percent; and (2) the enforcement of country-of-origin marking requirements, claiming that these were being fully enforced at least one year prior to 1986, the year Commerce's antidumping-duty order went into effect. U.S. Parties' Comments at 9-18. The domestic producers argue that section 751(b) and applicable Commission precedent preclude a review because the changed circumstances alleged by the Canadian producers are premised on inaccurate or incomplete factual assertions, exaggerated estimates of the effect of Buy America restrictions, and speculation regarding future action by states and municipalities. Id. at 18-21. After consideration of the request and the comments submitted in response to the Commission's Federal Register notice, the Commission determines that the information of record does not show changed circumstances sufficient to warrant institution of an investigation to review the Commission's affirmative determination in Iron Construction Castings from Canada, Inv. No. 731-TA-263 (Final), USITC Pub. 1811 (Feb. 1986) or its determination in Iron Construction Castings from Brazil, India, and the People's Republic of China, Inv. Nos. 701-TA- 249; 731-TA-262, 264-265 (Final), USITC Pub. 1838 (April 1986). DECISION OF THE COMMISSION: Section 751(b)(1) of the Act grants to the Commission the authority to conduct an investigation to determine whether to revoke or modify an outstanding antidumping order. The Commission is required to conduct a review of a prior affirmative injury determination whenever it receives a request for such a review that shows ``changed circumstances sufficient to warrant a review.'' Congress, however, set forth ``very strict controls'' on the exercise of that authority, demonstrating that it did not want prior Commission injury determinations ``to remain in a state of flux.'' Royal Business Machines, Inc. v. United States, 507 F. Supp. 1007, 1014 n. 18 (Ct. Int'l Trade 1980), aff'd, 669 F.2d 692 (CCPA 1982). The statutory requirements for instituting Section 751 reviews clearly demonstrate the intent of Congress that the ``underlying finding of injury . . . is entitled to deference and should not be disturbed lightly.'' Avesta AB v. United States, 689 F. Supp. 1173, 1180 (Ct. Int'l Trade 1988) (Avesta I); see also Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 932 (Fed. Cir. 1984). In order for a review investigation to be instituted, the information available to the Commission, after notice and comment from all interested parties, must be sufficient to persuade the Commission: (1) That there have been significant changed circumstances from those in existence at the time of the original investigation, (2) that those changed circumstances are not the natural and direct result of the imposition of the antidumping or countervailing duty order, and (3) that the changed circumstances indicate that the domestic industry would not be materially injured should the order be revoked thereby warranting a full investigation. See A. Hirsh, Inc. v. United States, 737 F. Supp. 1186 (CIT 1990)(Hirsh II); Avesta AB v. United States, 724 F. Supp. 974 (CIT 1989), aff'd 914 F.2d 232 (Fed. Cir. 1990), cert. denied, 111 S. Ct. 1308 (1991)(Avesta II). Once instituted, the petitioner must persuade the Commission, after a full investigation and hearing, that the domestic industry would not be injured or threatened with injury if the order were revoked. See Citizen Watch Co. v. United States, 733 F. Supp. 383 (CIT 1990). The CIT has observed that ``Congress carefully limited the availability of Sec. 1675(b) investigations'' and that ``the party seeking review bears the initial burden of showing the existence of changed circumstances sufficient to warrant a review.'' Avesta I, 689 F. Supp. at 1180, 1181; Avesta II, 724 F. Supp. at 978; A. Hirsh, Inc. v. United States, 729 F. Supp. 1360 (Ct. Int'l Trade 1990) (Hirsh I), aff'd following remand, 737 F. Supp. 1186 (Ct. Int'l Trade 1990) (Hirsh II). This burden is placed upon the party seeking review because the review investigation does not begin with a clean slate as though it were an original investigation. Matsushita, 750 F.2d at 932. Although a petition for institution of a review need not ``prove'' that changed circumstances exist such that injury would not recur upon revocation, it must nevertheless contain credible evidence which, if uncontroverted by other evidence, would persuade the Commission that a full review is warranted. Avesta I, 689 F. Supp. at 1181. In determining whether a full review is warranted, the Commission is permitted to weigh the evidence presented to it. The Commission analyzes the specific facts alleged in the petition and fully evaluates all the evidence submitted in support of, and in opposition to, the petition. Full reviews will not be instituted based upon mere allegations in a petition, allegations that are clearly contradicted by evidence submitted by others in response to the Commission's notice, or allegations that are contradicted or undermined by a petitioner's own data. Thus, the Commission decides whether to initiate a review, not based solely on the allegations contained in a petition, but also upon a critical evaluation of the entire record. Avesta I, 689 F. Supp. at 1181. In this case, the request alleged three changed circumstances warranting review: (1) Changes in enforcement of country of origin marking requirements for manhole covers; (2) the extension of Buy America restrictions to procurement of iron construction castings in airport construction; and (3) the extension of Buy America restrictions to procurement of iron construction castings in all highway construction that receives federal financing. The information available on the record does not persuade us that a full investigation is warranted for any of the three allegations. The changes in country of origin marking requirements for manhole covers significantly predate the Commission's original determination. The statutory change occurred in 1984, and there is documented evidence of its enforcement by Customs prior to 1986. Because those requirements were in effect prior to the Commission's injury determination, they are not ``changed'' circumstances. The two separate extensions of Buy America restrictions, however, occurred after the Commission's determination and do constitute ``changed circumstances'' that are not the natural and direct consequence of the imposition of the order. With respect to the extension of Buy America restrictions to airport construction, the Canadian industry admits that the change only affects 2 percent of total U.S. consumption. In the context of this market and the relative shares of the market reflected in the original record, such a marginal impact alone is not a changed circumstance sufficient to warrant review. The third ``changed circumstance'' concerns a 1991 amendment to the Buy America provisions (Section 165(a)) of the Surface Transportation Assistance Act of 1982. Section 1048 of the Intermodal Surface Transportation Efficiency Act of 1991 extended those Buy America restrictions to iron. Amended section 165(a) reads as follows: Notwithstanding any other provision of law, the Secretary of Transportation shall not obligate any funds authorized to be appropriated by the Act * * * unless steel, iron, cement, and manufactured products used in such project are produced in the United States. 23 U.S.C. 101 note (emphasis added). The Canadian producers insist that this amendment has effectively precluded them from competing with the domestic industry in 60-75 percent of the U.S. market. In this case, because ``the vast bulk of construction castings are ultimately purchased and used by utilities, municipalities, and other such entities for civil construction purposes,'' government contracts comprise a substantial portion of total sales. Iron Construction Castings from Canada, USITC Pub. 1811 at A-9. It is not at all clear, however, what percentage of the total market is covered by Buy America restrictions and how the extension of Buy America restrictions has affected the U.S. market generally, or any segment of the market in particular. The only available objective evidence of the impact of the Buy America restrictions on U.S. sales of Canadian castings--import trends--suggests that the restrictions have not had a significant impact on such sales. If the extension of Buy America restrictions had a significant impact on the ability of Canadian producers to compete in the U.S. market, then one would expect to see a decline in imports from Canada, and from all other sources as well, shortly after the extensions took effect. Data supplied by the Canadian producers regarding import trends, however, indicate that, after the extension of the Buy America restrictions, imports did not decline significantly. In 1986, when the order was first imposed, imports of iron construction castings from Canada reached 21,377 short tons. While imports declined subsequently, the significant decline in imports predates the extension of Buy America restrictions in 1991. Imports declined from 18,312 short tons in 1989 to 11,996 short tons in 1990. In 1991, such imports declined slightly to 10,233 short tons. Although imports dropped further to 8,312 short tons in 1992, data available for the first three quarters of 1993 indicate that imports from Canada already exceeded 1992 full-year levels and were likely to exceed 12,000 short tons by the end of the year. See Petition at Appendix 22. Declines in imports followed by larger increases in recent periods do not support the claim that the 1991 amendments have significantly affected the ability of Canadian producers to compete in the U.S. market. To support their assertion of the size of the Buy America market, the Canadian producers submitted only a conclusory and unsubstantiated declaration by a member of the Canadian Foundry Association. No methodology was identified and no source was cited for the estimates. Further, the Canadian producers acknowledge that their estimates are based on favorable assumptions regarding future actions by state and local authorities in extending their own Buy America restrictions to cover iron construction castings. They argue that such actions, while not mandatory, ``are reasonable to expect.'' We find persuasive the domestic producers' objection that such expectations of future state and local administrative actions do not constitute changed circumstances. See Avesta I, 689 F. Supp. at 1185 (``A future intention does not show changed circumstances in the present.''). Moreover, the Canadian producers did not provide any evidence regarding their shipments to particular U.S. market segments and the effect of the extension of Buy America restrictions, if any, on shipments to each of those market segments. In sum, we believe that the Canadian estimates of the Buy America market are overstated. Although Buy America restrictions have been expanded as the result of federal legislation, it is not clear how broad they are and how much of the iron construction casting market is now affected by them. Although the Canadian producers have arguably raised an issue of fact that may have merit, if true, they have not provided sufficient evidence to persuade us that the petition shows changed circumstances warranting review. While the petitioner need not prove its case at the institution stage, the petition, as filed, must contain more than the conclusory allegations submitted in this case. Because neither probative supporting evidence, an explanation of methodology, nor any concrete indication of the significance of the extension of Buy America restrictions has been provided, there is insufficient evidence to warrant a full investigation. Absent such evidence, we determine that it is inappropriate to institute a review. Accordingly, the request for a review is denied. Finally, in the absence of a review of the Canadian order, a self-initiated review of the order covering iron construction castings from Brazil, India, and China is inappropriate. By order of the Commission. Issued: August 17, 1994. Donna R. Koehnke, Secretary. [FR Doc. 94-20931 Filed 8-24-94; 8:45 am] BILLING CODE 7020-02-P