[Federal Register Volume 60, Number 50 (Wednesday, March 15, 1995)]
[Notices]
[Pages 13956-13958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6402]



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DEPARTMENT OF COMMERCE
[A-549-810]


Notice of Preliminary Negative Determination of Critical 
Circumstances: Disposable Pocket Lighters From Thailand

AGENCY: International Trade Administration, Import Administration, 
Department of Commerce.

EFFECTIVE DATE: March 15, 1995.

FOR FURTHER INFORMATION CONTACT: David R. Boyland, Office of 
Countervailing Investigations, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-
4198.
    Preliminary Negative Determination of Critical Circumstances: The 
Department of Commerce (the ``Department'') published its preliminary 
determination of sales at less than fair value in this investigation on 
October 24, 1994 (59 FR 53414). On February 1, 1995, petitioner alleged 
that critical circumstances exist with respect to imports of the 
subject merchandise. On February 10, 1995, we received data from Thai 
Merry Co., Ltd. (``Thai Merry''), the respondent in this investigation, 
on U.S. shipment to the United States.
    In accordance with 19 CFR 353.16(b)(2)(ii), when a critical 
circumstances allegation is filed later than 20 days before the 
scheduled date of the preliminary determination, we must issue our 
preliminary determination no later than 30 days after the allegation is 
filed.
    Section 733(e)(1) of the Act provides that the Department will 
preliminarily determine that critical circumstances exist if we 
determine that there is a reasonable basis to believe or suspect:
    (A)(i) There is a history of dumping in the United States or 
elsewhere of the class or kind of merchandise which is the subject of 
the investigation, 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 merchandise which is the subject of the 
investigation at less than its fair value, and
    (B) there have been massive imports of the class or kind of 
merchandise which is the subject of the investigation over a relatively 
short period. [[Page 13957]] 
    History of Dumping: To support the claim that the first prong of 
the statutory requirement is met, petitioner cited the European 
Community's November 19, 1991, imposition of antidumping duties on gas-
fueled, non-refillable pocket flint lighters from the People's Republic 
of China, Japan, Korea, and Thailand (Council Regulation (EEC) No. 
3433/91). Therefore, because petitioner established a history of 
dumping of the subject merchandise, we are not required to consider 
whether the importer knew or should have known that the exporter was 
selling the subject merchandise at less than fair value.
    Massive Imports: Because we have preliminarily determined that the 
first statutory criterion is met for finding critical circumstances, we 
must consider whether imports of the merchandise have been massive over 
a relatively short period in accordance with 19 CFR 353.16(f) and (g).
    19 CFR 353.16(f) and 353.16(g) directs the Department to look at 
the following factors to determine whether imports have been massive 
over a relatively short period of time: (1) The volume and value of the 
imports; (2) seasonal trends (if applicable); and (3) the share of 
domestic consumption accounted for by the imports.
    When examining volume and value data, the Department typically 
compares the export volume for equal periods immediately preceding and 
following the filing of the petition (see, Preliminary Affirmative 
Determination of Critical Circumstances: Certain Cased Pencils From the 
People's Republic of China, (59 FR 44128 (August 26, 1994)). Under 19 
CFR 353.16(f)(2), unless imports of the subject merchandise have 
increased by at least 15 percent, we will not consider the imports to 
have been ``massive.''
    Because a determination of critical circumstances should be based 
on company-specific shipment information (see, Final Determination of 
Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat 
Products, Certain Cold-Rolled Carbon Steel Flat Products, and Certain 
Cut-to-Length Carbon Steel Plate from Belgium, 58 FR 37083 (July 9, 
1993)), we requested that Thai Merry provide shipment information for 
the period from December 1, 1993 through April 30, 1994 (``pre-
petition'' period) and May 1, 1994 through September 30, 1994 (``post-
petition'' period). Pursuant to section 353.16(g) of the Department's 
antidumping regulations, in making critical circumstances 
determination, the Department normally considers the period beginning 
on the first day of the month of the initiation and ending at least 
three months later. The Department considers this period because it is 
the period immediately prior to a preliminary determination in which 
exporters of the subject merchandise could take advantage of the 
knowledge of the dumping investigation to increase exports to the 
United States without being subject to antidumping duties (see, Final 
Determination of Sales at Less Than Fair Value of Certain Internal-
Combustion, Industrial Forklift Trucks from Japan, (53 FR 12552, April 
15, 1988)). For purposes of this final determination we are using as 
our comparison period five months prior to and five months subsequent 
to the initiation of this investigation.
    Based on Thai Merry's shipment data, imports increased by an amount 
greater than 15 percent between the pre- and post-petition periods.
    Seasonality: We found no evidence of seasonality, pursuant to 
section 353.16(1)(ii) of the Department's regulations.
    Share of Domestic Consumption: Based on the information supplied in 
the critical circumstances allegation, Thai Merry's market share of 
domestic consumption (i.e., total imports from Thailand as a percentage 
of total domestic consumption) between the pre- and post-petition 
periods did not change by an amount greater than three percentage 
points. (See, the February 27, 1995 memorandum to Susan H. Kuhbach, 
Director of Countervailing Investigations from David R. Boyland, Case 
Analyst for a full discussion of this issue.)
    Other Factors: Respondent argues that the increase in shipment was 
in response to a Consumer Product Safety Commission (``CPSC'') 
regulation which came into effect on July 12, 1994, and was not an 
attempt to circumvent a potential antidumping duty order.
    Respondent also argues that section 353.16(f)(2) and past precedent 
allow the Department to consider the impact of the CPSC regulation on 
imports in determining whether they were massive. Respondent cites a 
DOC position comment in Antidumping Duties: Final Rule which states 
that the 15 percent test is ``not intended to limit the Department's 
discretion or responsibility to consider in each case the factors 
relevant to a decision regarding whether imports are `massive''' (see, 
Final Rule, 54 FR 12742, 12751 (March 28, 1989)).
    With respect to the increase in shipment between the pre- and post-
petition periods, and the circumstances that surround it, May 1994 is 
the month within the post-petition period which has been examined most 
closely by the Department. Based on an examination of past imports from 
Thailand, the highest volume of imports prior to the post-petition 
period occurred in August 1993. May 1994's volume of shipments was the 
only month during the post-petition period in which the level of 
shipments went outside the range established in August 1993. Hence, the 
surge in shipments that occurred in May represented a unique ``spike'' 
in the trend of shipments.
    Also, the information provided to the Department shows that this 
dramatic increase in shipments was not sustained. If respondent was 
attempting to take advantage of the knowledge of an antidumping 
investigation to export prior to suspension of liquidation, we would 
expect the increase in shipment to be sustained up until the 
preliminary determination. This did not occur.
    Finally, a significant percentage of the May 1994 shipments 
consisted of standard lighters which were to be banned pursuant to the 
July 1994 CPSC regulation. (Note: the CPSC gave notice of the impending 
ban on July 12, 1993. Thus, respondent was aware of the CPSC ban one 
year prior to its effective date. Additionally, orders shipped in May 
1994 would arrive in the United States in June 1994; i.e., prior to the 
CPSC ban.) Based on this information, it is reasonable to assume that 
the CPSC regulation drove the sharp increase in imports between the 
pre- and post-petition periods, as opposed to the possible suspension 
of liquidation.
    Conclusion: Based on (1) an evaluation of apparent domestic 
consumption during the pre- and post-petition period, as calculated by 
petitioner, (2) Thai Merry's share of domestic consumption during the 
pre- and post-petition periods, (3) the shipment data provided by 
respondent as compared to previous periods, and (4) consideration of 
the circumstances surrounding the large increase in shipment in May 
1994, we preliminarily determine that critical circumstances do not 
exist. (A more detailed analysis of the critical circumstances 
allegation is contained in the February 27, 1995 memorandum to Susan H. 
Kuhbach, Director, Office of Countervailing Investigations from David 
R. Boyland, Case Analyst.)
    ITC Notification: In accordance with section 733(f) of the Act, we 
have notified the ITC of our determination.
    Public Comment: Since this determination is being made subsequent 
to the due dates for public comment as published in our notice of 
preliminary determination of sales at less than fair value, we will 
accept written comments [[Page 13958]] limited to this preliminary 
determination on critical circumstances if they are submitted to the 
Assistant Secretary for Import Administration no later than March 6, 
1995
    This determination is published pursuant to section 733(f) of the 
Act.

    Dated: March 3, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-6402 Filed 3-14-95; 8:45 am]
BILLING CODE 3510-DS-P