[Federal Register: December 22, 2003 (Volume 68, Number 245)]
[Notices]
[Page 71072-71078]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de03-29]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-588-863]
Notice of Preliminary Determination of Sales at Less Than Fair
Value and Affirmative Preliminary Determination of Critical
Circumstances: Wax and Wax/Resin Thermal Transfer Ribbons From Japan
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary determination of sales at less than fair
value.
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EFFECTIVE DATE: December 22, 2003.
FOR FURTHER INFORMATION CONTACT: Cheryl Werner at (202) 482-2667, or
Paul Walker at (202) 482-0413; Office of AD/CVD Enforcement IX, Group
III, Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
Preliminary Determination
We preliminarily determine that wax and wax/resin thermal transfer
ribbons (TTR) from Japan are being sold, or are 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
preliminary margins assigned to Union Chemicar Company Limited (UC) and
Dai Nippon Printing Company Limited (DNP) are based on adverse facts
available (AFA). The estimated margin of sales at LTFV is shown in the
``Suspension of Liquidation'' section of this notice.
In addition, we preliminarily determine that there is a reasonable
basis to believe or suspect that critical circumstances exist with
respect to imports of subject merchandise from UC and DNP, but not from
all other Japanese manufacturers/exporters.
Interested parties are invited to comment on this preliminary
determination. We will make our final determination not later than 75
days after the date of this preliminary determination.
Case History
This investigation was initiated on June 19, 2003.\1\ See Notice of
Initiation of Antidumping Duty Investigation: Thermal Transfer Ribbons
From France, Japan and the Republic of Korea, 68 FR 38305 (June 27,
2003) (Initiation Notice). Since the initiation of the investigation,
the following events have occurred.
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\1\ The Petitioner in this investigation is International
Imaging Materials, Inc. (IIMAK).
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On July 14, 2003, the United States International Trade Commission
(ITC) preliminarily determined that there is a reasonable indication
that an industry in the United States is materially injured by reason
of imports from France, Japan, and Korea of certain wax and wax/resin
thermal transfer ribbons. See Certain Wax and Wax/Resin Thermal
Transfer Ribbons From France, Japan, and Korea, 68 FR 42759 (July 18,
2003) (ITC Prelim).
On July 14, 2003, counsel for Armor S.A. (Armor), respondent in the
antidumping duty investigation of TTR from France, met with the
Department to discuss product characteristics. On July 17, 2003, Armor
submitted comments regarding product characteristics and the
Department's upcoming tour of the Petitioner's TTR production
facilities in New York. On July 21, 2003, the Department toured these
facilities and met with the Petitioner to discuss product
characteristics.
On August 4, 2003, August 6, 2003 and August 18, 2003, the
Petitioner submitted comments regarding the model match criteria. On
August 5, 2003 and August 6, 2003, Armor submitted comments regarding
the model match criteria. Additional model match comments were
submitted by other interested parties on this record, as follows:
Illinois Tool Works Inc. and ITW Specialty Films Co., Ltd.
(collectively, ITW), respondents in the antidumping duty investigation
of TTR from the Republic of Korea, on July 21, 2003, and August 4,
2003; DNP, on August 5, 2003; and Brother
[[Page 71073]]
International Corporation, on August 5, 2003. On August 8, 2003, the
Department issued its model match criteria via sections B and C of the
questionnaire (refer to below). On August 28, 2003, the Department
clarified its model match criteria. On September 4, 2003, the
Petitioner submitted additional comments regarding model match
criteria. On October 9, 2003, the Department met with the Petitioner's
counsel to discuss its model match comments.
On July 28, 2003 and July 30, 2003, the Petitioner submitted
comments regarding the scope of the investigation. On August 7, 2003,
General Company Limited, an interested party, submitted comments
regarding the scope of the investigation. On September 2, 2003, the
Petitioner submitted a ``test'' description to the Department, for the
purpose of determining whether a product should be classified as a wax,
resin enhanced wax, or wax/resin ribbon. On September 9, 2003, Armor
submitted comments on the Petitioner's September 2 test proposal. On
September 11, 2003, the Department issued a clarification to the scope
of this investigation. See Memorandum from Edward C. Yang, Office
Director to Joseph A. Spetrini, Deputy Assistant Secretary; Antidumping
Investigation on Certain Wax and Wax/Resin Thermal Transfer Ribbon from
France, Japan and Korea: Scope Clarification. The Department removed
the word ``pure'' from the section discussing the exclusion of resin
TTR in the scope language.
On November 4, 2003, the Petitioner submitted a letter to the
Department correcting a typographical error in the color specification
of the scope, as written in the petition and initiation notice: ``-
20a*<35'' should read, ``-20<35''.
On August 1, 2003, the Department issued section A of its
questionnaire to UC and DNP. On August 18, 2003, UC informed the
Department that it declined to respond to the questionnaire. On August
7, 2003, the Department, pursuant to DNP's request, extended its
deadline for responding to section A of the questionnaire, to September
5. On September 5, 2003, the Department received a response to section
A of its questionnaire. On September 15, 2003, the Department received
a revised quantity and value chart, pursuant to the Department's
September 11, 2003 scope ruling. On September 22, 2003, the Petitioner
submitted comments on DNP's response to section A of the questionnaire.
On September 24, 2003, the Department issued its first supplemental
section A questionnaire to DNP. On October 7, 2003, the Department
extended the deadline for certain questions in the first supplemental
section A questionnaire to October 8, 2003, and the remaining questions
to October 10, 2003, at DNP's request. On October 8, 2003 and October
10, 2003, the Department received responses to the first supplemental
section A questionnaire. On October 14, 2003, the Department requested
DNP to respond to 28 questions from the first supplemental section A
questionnaire it had failed to answer in full in its October 8, 2003
and October 10, 2003 responses. On October 17, 2003, the Department
received a response to the 28 questions from the first supplemental
section A questionnaire.
On September 26, 2003, the Department issued its second
supplemental A questionnaire to DNP. On October 3, 2003, the Department
received a response to the second supplemental A questionnaire. On
October 7, 2003, the Department also requested that DNP provide a
complete response to its September 26, 2003, second supplemental A
questionnaire. On October 8, 2003, the Department received a response
to its October 7, 2003 request.
On October 10, 2003, the Department issued its third supplemental A
questionnaire to DNP. On October 15, 2003, the Department received a
response to the third supplemental A questionnaire.
On August 8, 2003, the Department issued sections B through E of
its questionnaire to UC and DNP. On August 14, 2003, the Department,
pursuant to DNP's request, extended its deadline for responding to
sections B through E of the questionnaire, to September 22, 2003. On
September 17, 2003, the Department again extended the deadlines for
sections B through E to September 23 for Section B, and September 25
for sections C and E, again at DNP's request. On September 23, 2003,
the Department received a response to section B and on September 25,
2003, the Department received a response to sections C and E of the
questionnaire. On October 3, 2003, the Petitioner submitted comments on
DNP's response to section B of the questionnaire. On October 6, 2003,
the Department rejected DNP's September 24, 2003 section B response and
September 26, 2003 sections C and E responses in accordance with
section 777(b)(1)(B) of the Act. On October 8, 2003, DNP resubmitted
its responses to sections B, C, and E of the questionnaire. On October
10, 2003, the Petitioner submitted comments on DNP's response to
section C of the questionnaire. On October 17, 2003, the Petitioner
submitted comments on DNP's response to section E of the questionnaire.
On October 21, 2003, the Department issued its supplemental B
questionnaire to DNP based on DNP's October 8, 2003 third country sales
response. On October 23, 2003, the Department issued its supplemental C
questionnaire to DNP. On November 3, 2003, the Department issued its
supplemental E questionnaire to DNP.
On September 26, 2003, the Department requested a Section B
response based on DNP's Japanese home market sales of merchandise under
investigation. On October 6, 2003, the Department extended the deadline
for filing market viability allegations, at the Petitioner's request.
On October 10, 2003, DNP requested the Department rescind its request
for a Section B response based on DNP's Japanese home market sales of
merchandise under investigation. On October 14, 2003, the Department
extended the deadline for DNP's Section B response based on its
Japanese home market sales to October 23, 2003, at DNP's request. On
October 20, 2003, the Petitioner submitted comments on DNP's home
market viability. On October 21, DNP submitted comments on home market
viability and again requested the Department rescind its request for a
Section B response based on DNP's Japanese home market sales of
merchandise under investigation. On October 23, 2003, the Department
again extended the deadline for DNP's Section B response based on its
Japanese home market sales to November 3, 2003, again at DNP's request.
On September 12, 2003, the Department issued its positions on
Armor's cost reporting issues, which we released to DNP. See Memorandum
from Cheryl Werner, Case Analyst through James C. Doyle, Program
Manager, to the File; Antidumping Duty Investigation of Certain Wax and
Wax/Resin Thermal Transfer Ribbons (``TTR'') from Japan: Clarification
of Cost Reporting, dated September 29, 2003 (``Cost Clarification
Memorandum''). In the Cost Clarification Memorandum, the Department
stated that in the event of a sales below cost allegation for DNP's
merchandise under investigation, DNP would be subject to the
clarifications in reporting of cost information discussed in this
letter. Id. On October 14, 2003, the Petitioner alleged that DNP's
third country sales were made at prices below DNP's cost of production.
On November 3, 2003, DNP declined the opportunity to respond to the
[[Page 71074]]
supplemental questionnaires issued by the Department on October 21 and
23, 2003, and withdrew from the investigation. DNP requested that all
business proprietary copies of its questionnaire responses be returned
or destroyed. On November 17, 2003, the Department notified DNP that it
had destroyed all business proprietary copies of its questionnaire
responses. On November 17, 2003, the Department also requested all
parties subject to the administrative protective order (``APO'') of
this proceeding certify to the return or destruction of DNP's business
proprietary information released under the Department's June 4, 2003,
administrative protective order. On November 18, 19, and 20, the
Department received such certifications from all parties subject to the
Department's June 4, 2003, administrative protective order.
On October 3, 2003, the Petitioner made a timely request for a
forty-day extension of the preliminary determination pursuant to
section 733(c)(1)(A) of the Act. On October 21, 2003 we postponed the
preliminary determination until no later than December 16, 2003. See
Wax and Wax/Resin Thermal Transfer Ribbons from France, Japan, and the
Republic of Korea; Notice of Postponement of Preliminary Determinations
in Antidumping Duty Investigations, 68 FR 60085 (October 21, 2003).
On November 26, 2003, the Petitioner filed a formal critical
circumstances allegation in accordance with 19 CFR 351.206(c)(2)(iii).
On December 12, 2003, DNP filed company-specific import data and
comments in response to the Petitioner's allegation of critical
circumstances for imports of TTR from Japan. For a more detailed
discussion, please see the ``Critical Circumstances'' section below.
On December 5, 2003, the Petitioner filed comments for the
preliminary determination.
Selection of Respondents
Section 777A(c)(1) of the Act directs the Department to calculate
individual dumping margins for each known exporter and producer of the
subject merchandise. Where it is not practicable to examine all known
producers/exporters of subject merchandise, section 777A(c)(2) of the
Act permits the Department to investigate either: (1) A sample of
exporters, producers, or types of products that is statistically valid,
based on the information available at the time of selection; or (2)
exporters and producers accounting for the largest volume of the
subject merchandise that can reasonably be examined.
We received quantity and value information from all seven \2\ known
producers of the subject merchandise from Japan. UC and DNP were the
producers accounting for the largest volume of exports to the United
States during the period of investigation (POI). Therefore, on July 31,
2003, we selected UC and DNP as the Respondents in the investigation of
wax and wax/resin TTR from Japan. See Memorandum from Edward C. Yang,
Office Director to Richard O. Weible, Acting Deputy Assistant
Secretary; Antidumping Investigation on Thermal Transfer Ribbon from
Japan: Selection of Respondents.
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\2\ The seven producers are: Dynic Corporation (Dynic), Sony
Chemicals Corporation (Sony), Ricoh Company Limited (Ricoh), General
Company Limited (General), Fujicopian Company Limited (Fujicopian),
UC and DNP.
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Period of Investigation
The POI is April 1, 2002, through March 31, 2003. This period
corresponds to the four most recent fiscal quarters prior to the month
of filing of the petition (i.e., June 2003) involving imports from a
market economy, and is in accordance with our regulations. See 19 CFR
351.204(b)(1).
Scope of Investigation
This investigation covers wax and wax/resin thermal transfer
ribbons (TTR), in slit or unslit (``jumbo'') form originating from
Japan with a total wax (natural or synthetic) content of all the image
side layers, that transfer in whole or in part, of equal to or greater
than 20 percent by weight and a wax content of the colorant layer of
equal to or greater than 10 percent by weight, and a black color as
defined by industry standards by the CIELAB (International Commission
on Illumination) color specification such that L[ast]<35,-20<=a[ast]<35
and-40<31, and black and near-black TTR. TTR is typically used
in printers generating alphanumeric and machine-readable characters,
such as bar codes and facsimile machines.
The petition does not cover resin TTR, and finished thermal
transfer ribbons with a width greater than 212 millimeters (mm), but
not greater than 220 mm (or 8.35 to 8.66 inches) and a length of 230
meters (m) or less (i.e., slit fax TTR, including cassetted TTR), and
ribbons with a magnetic content of greater than or equal to 45 percent,
by weight, in the colorant layer.The merchandise subject to this
investigation may be classified in the Harmonized Tariff Schedule of
the United States (HTSUS) at heading 3702 and subheadings
3921.90.40.25, 9612.10.90.30, 3204.90, 3506.99, 3919.90, 3920.62,
3920.99 and 3926.90. The tariff classifications are provided for
convenience and Customs and Border Protection (CBP) purposes; however,
the written description of the scope of the investigation is
dispositive.
On October 28, 2003, November 21, 2003, and December 5, 2003, the
Petitioner submitted documents it claims suggest the respondents in the
TTR investigations are attempting to circumvent a potential TTR
antidumping order by slitting subject merchandise jumbo rolls in a
third country. The Petitioner contends that the country of origin of
slit TTR should be determined by the country of origin of the jumbo TTR
roll from which it was slit, regardless of where the slitting occurred.
The Petitioner argues that slitting subject merchandise jumbo TTR rolls
does not involve a substantial transformation, and therefore, does not
change the country of origin of slit TTR rolls.
On November 26, 2003, and December 12, 2003, Armor submitted
comments regarding the Petitioner's allegation. Armor argues that the
further manufacturing process does in fact substantially transform the
jumbo TTR rolls, and, thus, does change the country of origin of the
merchandise.
We have reviewed the Petitioner's and Armor's comments. However, as
a determination of whether slitting jumbo TTR rolls constitutes a
substantial transformation and therefore changes the country of origin
of the merchandise, and as such a change may affect the scope of this
investigation and future proceedings, it is necessary to provide
interested parties the opportunity to comment on this issue. See
Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296,
27323 (May 19, 1997). The Department encourages all interested parties
to submit such comments. Comments are due within 14 days of the
publication of this notice. Rebuttal comments must be filed within five
days after the deadline for the submission of the initial country of
origin comments. We remind parties that case and rebuttal briefs,
whether commenting on this country of origin issue, or any other issue,
must be limited to the facts already on the record in accordance with
section 19 CFR 351.309 of the Department's regulations.
Facts Available
For the reasons discussed below, we determine that the use of AFA
are appropriate for the preliminary determination with respect to UC
and DNP.
[[Page 71075]]
A. Use of Facts Available
Section 776(a)(2) of the Act provides that, if an interested party
withholds information requested by the Department, fails to provide
such information by the deadline or in the form or manner requested,
significantly impedes a proceeding, or provides information which
cannot be verified, the Department shall use facts otherwise available
in reaching the applicable determination. As stated above, UC informed
the Department at the outset that it would not participate in this
investigation. DNP has informed the Department that it will no longer
participate in this investigation and has requested that all of its
responses be returned or destroyed. Since UC and DNP withheld
information requested by the Department, the Department has no choice
but to rely on the facts otherwise available in order to determine a
margin for these parties, pursuant to section 776(a)(2) of the Act.
B. Application of Adverse Inferences for Facts Available
In applying facts otherwise available, section 776(b) of the Act
provides that the Department may use an inference adverse to the
interests of a party that has failed to cooperate by not acting to the
best of its ability to comply with the Department's requests for
information. See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Final Negative Critical Circumstances: Carbon and
Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-96 (August
30, 2002). Adverse inferences are appropriate ``to ensure that the
party does not obtain a more favorable result by failing to cooperate
than if it had cooperated fully.'' See Statement of Administrative
Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No.
103-316, at 870 (1994) (SAA). Furthermore, ``{a{time} ffirmative
evidence of bad faith on the part of a respondent is not required
before the Department may make an adverse inference.'' See Antidumping
Countervailing Duties: Final Rule, 62 FR 27296, 27340 (May 19, 1997).
In this case, UC has failed to cooperate to the best of its ability by
not responding to the Department's antidumping questionnaires. DNP has
failed to cooperate to the best of its ability by withdrawing its
responses to the Department's antidumping questionnaires and declining
any further participation in this investigation. Therefore, the
Department has preliminarily determined that in selecting from among
the facts otherwise available, an adverse inference is warranted. See,
e.g., Notice of Final Determination of Sales at Less than Fair Value:
Circular Seamless Stainless Steel Hollow Products from Japan, 65 FR
42985, 42986 (July 12, 2000) (the Department applied total AFA where
respondent failed to respond to the antidumping questionnaires).
C. Selection and Corroboration of Information Used as Facts Available
Where the Department applies AFA because a respondent failed to
cooperate by not acting to the best of its ability to comply with a
request for information, section 776(b) of the Act authorizes the
Department to rely on information derived from the petition, a final
determination, a previous administrative review, or other information
placed on the record. See also 19 CFR 351.308(c); SAA at 829-831. In
this case, because there is insufficient information on the record for
the Department to calculate margins for the Respondents in this
investigation, we are relying on information derived from the petition
in applying AFA. We preliminarily assign to UC and DNP the highest
margin from the proceeding, which is the highest margin alleged for
Japan in the petition, 147.30 percent. See Initiation Notice, 68 FR at
38308.
When using facts otherwise available, section 776(c) of the Act
provides that, when the Department relies on secondary information
(such as the petition) in using facts otherwise available, it must, to
the extent practicable, corroborate that information from independent
sources that are reasonably at its disposal. The SAA clarifies that
``corroborate'' means that the Department will satisfy itself that the
secondary information to be used has probative value. See SAA at 870.
The Department's regulations state that independent sources used to
corroborate such evidence may include, for example, published price
lists, official import statistics and customs data, and information
obtained from interested parties during the particular investigation.
See 19 CFR Sec. 351.308(d); see also SAA at 870.
To assess the reliability of the petition margin for the purposes
of this investigation, to the extent appropriate information was
available, we reviewed the adequacy and accuracy of the information in
the petition during our pre-initiation analysis. See Antidumping
Investigations Initiation Checklist; Wax and Wax/Resin Thermal Transfer
Ribbon From France, Japan, and South Korea, pages 7 through 9 (June 25,
2003) (Initiation Checklist). In accordance with section 776(c) of the
Act, to the extent practicable, we examined the key elements of the
constructed export price (CEP) and normal value (NV) calculations on
which the highest margin in the petition was based.
1. Corroboration of Constructed Export Price
To calculate constructed export price (CEP) the Petitioner obtained
pricing information for certain wax and wax/resin products sold to
unaffiliated parties in the United States, and comparable to the
products sold in Japan. The Petitioner made certain adjustments to this
selling price for specific expenses that would be incurred by foreign
producers of the subject merchandise for sales made in the United
States. Because the Petitioner was unable to obtain actual data for
selling expenses incurred by respondents in the United States, the
Petitioner obtained price quotes as a basis for its estimation of
certain expenses, and, where appropriate, also based its estimates for
such expenses on actual figures incurred in the course of its own
selling activities. The Petitioner indicates this approach is a
reasonable and appropriate way to calculate CEP because the selling
process for TTR is uniform within the United States, and the selling
activities performed by respondents' U.S. affiliates for their U.S.
customers are largely the same as those performed by the Petitioner for
its customers in the United States. Where known differences between the
Petitioner's and respondents' operations exist, the Petitioner adjusted
selling expenses accordingly to account for such differences.
With respect to selling expenses incurred in Japan, the Petitioner
indicated there is no basis to believe that such expenses would differ
for TTR destined for the United States versus merchandise sold in the
home market. Therefore, according to the Petitioner, it is reasonable
to consider such expenses to be equal for sales to the United States
and in the home market.
As detailed in the Initiation Checklist, the petition contained
documentation supporting the figures used in this CEP calculation,
which was analyzed by the Department and revised by the Petitioner
through answers to supplemental questions issued by the Department.
2. Corroboration of Normal Value
With respect to normal value (NV), the Petitioner relied on foreign
market research to obtain price estimates for TTR sold in the home
market. The
[[Page 71076]]
Petitioner obtained foreign market research relating to two grades of
TTR sold in the Japanese market. This sales information is
contemporaneous with the sales information used as the basis for CEP
and represents sales of products that are either identical or similar
to those products for which the Petitioner obtained U.S. sales
information.
As detailed in the Initiation Checklist, the petition contained
documentation supporting the figures used in this NV calculation, which
was analyzed by the Department and revised by the Petitioner through
answers to supplemental questions issued by the Department.
All Others Rate
Section 735(c)(5)(B) of the Act provides that, where the estimated
weighted-averaged dumping margins established for all exporters and
producers individually investigated are zero or de minimis or are
determined entirely under section 776 of the Act, the Department may
use any reasonable method to establish the estimated all-others rate
for exporters and producers not individually investigated. This
provision contemplates that we weight-average margins other than zero,
de minimis, and facts available margins to establish that ``All
Others'' rate. Where the data do not permit weight-averaging such
rates, the SAA provides that we use other reasonable methods. See SAA
at 873. The petition contained only information relating to U.S. sales
by DNP, compared against home market sales prices and cost. Since DNP
is the largest Japanese producer/exporter of subject merchandise, it is
reasonable to use a margin based on its U.S. sales as the ``All
Others'' rate. The estimated dumping margin for subject merchandise
from Japan, based on comparisons of CEP and NV, range between 65.9 and
147.3 percent, in the Initiation Notice. Accordingly, we calculated a
simple average of these two dumping margins in the Initiation Notice,
and applied this margin of 106.60 percent as the ``All Others'' rate.
Critical Circumstances
On November 26, 2003, the Petitioner alleged that there is a
reasonable basis to believe or suspect critical circumstances exist
with respect to the antidumping investigation of TTR from Japan. In
accordance with 19 CFR Sec. 351.206(c)(2)(i), because the Petitioner
submitted critical circumstances allegations exactly 20 days before the
scheduled date of the preliminary determination, the Department must
issue preliminary critical circumstances determinations not later than
the date of the preliminary determination.
Section 733(e)(1) of the Act provides that the Department will
preliminarily 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 the subject merchandise over a relatively short
period. Section 19 CFR 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 19 CFR Sec. 351.206(h)(2) of the
Department's regulations provides that an increase in imports of 15
percent during the ``relatively short period'' of time may be
considered ``massive.''
Section 19 CFR Sec. 351.206(i) of the Department's regulations
defines ``relatively short period'' as normally being the period
beginning on the date the proceeding begins (i.e., the date the
petition is filed) and ending at least three months later. The
regulations also provide, however, 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.
Because we are not aware of any antidumping order in any country on
TTR from Japan, we do not find that a reasonable basis exists to
believe or suspect that there is a history of dumping and material
injury by reason of dumped imports in the United States or elsewhere of
the subject merchandise. Therefore, we must look to the second
criterion for determining importer knowledge of dumping.
In determining whether there is a reasonable basis to believe or
suspect that an importer knew or should have known that the exporter
was selling the TTR at less than fair value, the Department's normal
practice is to consider margins of 15 percent or more sufficient to
impute knowledge of dumping for constructed export price (CEP) sales,
and margins of 25 percent or more for export price (EP) sales. See
Certain Cut-to-Length Carbon Steel Plate From the People's Republic of
China (PRC Plate), 62 FR 31972, 31978 (June 11, 1997). In the instant
case, the mandatory respondents, UC and DNP did not respond to the
Department's questionnaire and we have applied, as AFA, the highest of
the dumping margins presented in the petition and corroborated by the
Department. This is consistent with section 776 of the Act and with
Department practice. See Final Determination of Sales at Less Than Fair
Value: Vector Supercomputers From Japan (Vector Supercomputers), 62 FR
45623 (August 28, 1997). UC and DNP's assigned dumping margins of
147.30 percent are greater than 15 percent. Therefore, we have imputed
knowledge of dumping to importers of subject merchandise from these
companies.
In determining whether there is a reasonable basis to believe or
suspect that an importer knew or should have known that there was
likely to be material injury by reason of dumped imports, the
Department normally will look to the preliminary injury determination
of the ITC. 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 there was likely to be material injury by reason of dumped
imports. In this case, the ITC has found that a reasonable indication
of present material injury due to dumping exists for all identified
countries. See ITC Prelim. As a result, the Department has determined
that there is a reasonable basis to believe or suspect that importers
knew or should have known that there was likely to be material injury
by reason of dumped imports of subject merchandise from Japan.
In determining whether there are ``massive imports'' over a
``relatively short period,'' the Department normally compares the
import volume of the subject merchandise for three months immediately
preceding and following the filing of the petition. Imports normally
will be considered massive when imports have increased by 15 percent or
more during this ``relatively short period.''
On December 12, 2003, DNP filed company-specific import data and
comments. However, these comments and information were submitted too
late for consideration in this preliminary determination. Because we do
not have verifiable data from the two uncooperative Japanese companies,
the
[[Page 71077]]
Department must base its ``massive imports'' determination as to these
companies on the facts available, pursuant to section 776(a) of the
Act.\3\ Because these companies failed to cooperate by not acting to
the best of their ability to respond to the Department's
questionnaires, we may make an adverse inference in selecting the facts
available. Therefore, consistent with Department practice, we have
adversely inferred, as facts available, that there were massive imports
from UC and DNP over a relatively short period. See Notice of Final
Determination of Sales at Less Than Fair Value: Collated Roofing Nails
from Taiwan (Collated Roofing Nails From Taiwan), 62 FR 51427 (October
1, 1997).
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\3\ Because the two respondents did not respond to the
questionnaire, they are non-cooperating respondents and accordingly
we did not request monthly shipment data from these companies.
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Based on our determination that there is a reasonable basis to
believe or suspect that importers knew or should have known that
exporters UC and DNP were selling TTR from Japan at less than fair
value, that there was likely to be material injury by reason of such
dumped imports, and that there have been massive imports of TTR from
these producers over a relatively short period, we preliminarily
determine that critical circumstances exist for imports from Japan of
wax and wax/resin TTR produced by UC and DNP.
It is the Department's normal practice to conduct its critical
circumstances analysis of companies in the ``all others'' group based
on the experience of investigated companies. See Notice of Final
Determination of Sales at Less Than Fair Value: Certain Steel Concrete
Reinforcing Bars from Turkey, 62 FR 9737, 9741 (March 4, 1997) (Rebars
from Turkey) (the Department found that critical circumstances existed
for the majority of the companies investigated, and therefore concluded
that critical circumstances also existed for companies covered by the
``all others'' rate). However, the Department does not automatically
extend an affirmative critical circumstances determination to companies
covered by the ``all others'' rate. See Notice of Final Determination
of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in
Coils from Japan, 64 FR 30574 (June 8, 1999) (Stainless Steel from
Japan). Instead, the Department considers the traditional critical
circumstances criteria with respect to the companies covered by the
``all others'' rate. Consistent with Stainless Steel from Japan, the
Department has, in this case, applied the traditional critical
circumstances criteria to the ``all others'' category for the
antidumping investigations of TTR from Japan.
First, in determining whether there is a reasonable basis to
believe or suspect that an importer knew or should have known that the
exporter was selling the TTR at less than fair value, we look to the
``all others'' rate, which is based, in the instant case, on facts
available. The dumping margin for the ``all others'' category in the
instant case, 106.60 percent, exceeds the 15 percent threshold
necessary to impute knowledge of dumping. Second, based on the ITC's
preliminary material injury determination, we also find that importers
knew or should have known that there would be material injury from the
dumped merchandise.
Finally, with respect to massive imports, we are unable to base our
determination on our findings for the mandatory respondents, because
our determinations for all of the respondents were based on facts
available. We have not inferred, as facts available, that massive
imports exist for ``all others'' because, unlike UC and DNP, the ``all
others'' companies have not failed to cooperate in this investigation.
Therefore, an adverse inference with respect to shipment levels by the
``all others'' companies is not appropriate. Instead, consistent with
the approach taken in Notice of Final Determination of Sales at Less
Than Fair Value: Hot-Rolled Flat-Rolled Carbon-Quality Steel Products
from Japan (Hot-Rolled Steel from Japan), 64 FR 24239 (May 6, 1999) and
Notice of Final Determinations of Sales at Less Than Fair Value:
Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products From
Argentina, Japan and Thailand (Cold-Rolled Steel from Japan) 65 FR
5220, 5227 (February 4, 2000), we examined U.S. Customs data on overall
imports from Japan for the five months preceding and the five months
following the filing of the petition in order to see if we could
ascertain whether an increase in shipments of greater than 15 percent
or more occurred within a relatively short period following the point
at which importers had reason to believe that a proceeding was likely.
However, information on the record indicates that these data cover
numerous HTS categories that include merchandise other than subject
merchandise. The U.S. Customs data also is reported in multiple units
of measure. Therefore, we cannot rely on these data in determining
whether there were massive imports for the ``all others'' category.\4\
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\4\ See Preliminary Determinations of Critical Circumstances:
Certain Small Diameter Carbon and Alloy Seamless Standard, Line and
Pressure Pipe from Japan and South Africa, 65 FR 12509, 12511 (March
9, 2000) (where the Department determined that massive imports did
not exist for imports from companies in the ``all others'' category
because it could not rely on the U.S. Customs data). See also Notice
of Final Determinations of Sales at Less Than Fair Value: Certain
Large Diameter Carbon and Alloy Seamless Standard, Line and Pressure
Pipe from Japan; and Certain Small Diameter Carbon and Alloy
Seamless Standard, Line and Pressure Pipe from Japan and the
Republic of South Africa 65 FR 25907, 25908 (May 4, 2000).
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Based on our determination that massive imports of TTR from the
producers included in the ``all others'' category did not occur and,
consequently, that the third criterion necessary for determining
affirmative critical circumstances has not been met, we have
preliminarily determined that critical circumstances do not exist for
imports from Japan of TTR for companies in the ``all others'' category.
Suspension of Liquidation
For UC and DNP, as indicated above, we have made a preliminary
affirmative critical circumstances finding. Therefore, in accordance
with section 733(d)(2) of the Act, we are directing Customs to suspend
liquidation of all entries of subject merchandise from UC or DNP that
are entered, or withdrawn from warehouse, for consumption on or after
90 days prior to the date of publication of this notice in the Federal
Register. We are directing Customs to suspend liquidation of all
entries of subject merchandise from companies other than UC or DNP that
are entered, or withdrawn from warehouse, for consumption on or after
the date of publication of this notice in the Federal Register. We are
also instructing Customs to require a cash deposit or the posting of a
bond equal to the dumping margin as indicated in the chart below. These
instructions suspending liquidation will remain in effect until further
notice.
The dumping margins are as follows:
------------------------------------------------------------------------
Margin
Producer/exporter (percentage)
------------------------------------------------------------------------
Union Chemicar Company Limited.......................... 147.30
Dai Nippon Printing Company Limited..................... 147.30
All Others.............................................. 106.60
------------------------------------------------------------------------
International Trade Commission Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of the Department's preliminary affirmative
[[Page 71078]]
determination. If the final determination in this proceeding is
affirmative, the ITC will determine before the later of 120 days after
the date of this preliminary determination or 45 days after the final
determination whether imports of TTR from Japan are materially
injuring, or threaten material injury to, the U.S. industry.
Public Comments
Interested parties are invited to comment on the preliminary
determination. Interested parties may submit case briefs within 50 days
of the date of publication of this notice. See 19 CFR 351.309(c)(1)(i).
Rebuttal briefs, the content of which is limited to the issues raised
in the case briefs, must be filed within five days after the deadline
for the submission of case briefs. See 19 CFR 351.309(d). A list of
authorities used, a table of contents, and an executive summary of
issues should accompany any briefs submitted to the Department.
Executive summaries should be limited to five pages total, including
footnotes. Further, we request that parties submitting briefs and
rebuttal briefs provide the Department with a copy of the public
version of such briefs on diskette.
In accordance with section 774 of the Act, we will hold a public
hearing, if requested, to afford interested parties an opportunity to
comment on arguments raised in case or rebuttal briefs. If a request
for a hearing is made, we will tentatively hold the hearing two days
after the deadline for submission of rebuttal briefs at the U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230, at a time and in a room to be determined. Parties
should confirm by telephone the date, time, and location of the hearing
48 hours before the scheduled date.
Interested parties who wish to request a hearing, or to participate
in a hearing if one is requested, must submit a written request to the
Assistant Secretary for Import Administration, U.S. Department of
Commerce, Room 1870, within 30 days of the date of publication of this
notice. Requests should contain: (1) The party's name, address, and
telephone number; (2) the number of participants; and (3) a list of the
issues to be discussed. At the hearing, oral presentations will be
limited to issues raised in the briefs. See 19 CFR 351.310(c). The
Department will make its final determination no later than 75 days
after the date of publication of this preliminary determination.
This determination is issued and published in accordance with
sections 733(f) and 777(i)(1) of the Act.
Dated: December 16, 2003.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 03-31479 Filed 12-19-03; 8:45 am]