[Federal Register Volume 64, Number 219 (Monday, November 15, 1999)]
[Notices]
[Pages 61835-61837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29751]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-855]
Preliminary Determination of Critical Circumstances: Certain Non-
Frozen Apple Juice Concentrate From the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: November 15, 1999.
FOR FURTHER INFORMATION CONTACT: Craig Matney or Vince Kane at (202)
482-1778 or 482-2815, respectively, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW, Washington, DC 20230.
The Applicable Statute and Regulations
Unless otherwise indicated, all citations to the statute are
references to the provisions effective January 1, 1995, the effective
date of the amendments made to the Tariff Act of 1930 (the Act) by the
Uruguay Round Agreements Act (URAA). In addition, unless otherwise
indicated, all citations to the Department's regulations are references
to the provisions codified at 19 CFR Part 351 (1998).
Critical Circumstances
On June 28, 1999, the Department of Commerce (the Department)
initiated an investigation to determine whether imports of certain non-
frozen apple juice concentrate (NFAJC) from the People's Republic of
China (PRC) are being, or are likely to be, sold in the United States
at less than fair value (64 FR 36330, July 6, 1999). In the petition
filed on June 7, 1999, petitioners alleged that there is a reasonable
basis to believe or suspect that critical circumstances exist with
respect to imports of NFAJC from the PRC. On July 22, 1999, the
International Trade Commission (ITC) preliminarily determined that
there was a reasonable grounds to believe or suspect that the domestic
industry was being injured by reason of imports of NFAJC from the PRC
(64 FR 40895, July 28, 1999).
In accordance with 19 CFR 351.206(c)(2)(i), because petitioners
submitted a critical circumstances allegation more than 20 days before
the scheduled date of the preliminary determination, the Department
must issue a preliminary critical circumstances determination not later
than the date of the preliminary determination. In a policy bulletin
issued on October 8, 1998, the
[[Page 61836]]
Department stated that it has determined that it may issue a
preliminary critical circumstances determination prior to the date of
the preliminary determination of dumping, assuming adequate evidence of
critical circumstances is available (see Change in Policy Regarding
Timing of Issuance of Critical Circumstances Determinations, 63 FR
55364). In accordance with this policy, we are issuing a preliminary
critical circumstances decision in this investigation of NFAJC imports
from the PRC.
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 the
subject merchandise over a relatively short period.
History of Dumping and Importer Knowledge
We are not aware of any antidumping order in any country on NFAJC
from the PRC. Therefore, we examined whether there was importer
knowledge. 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 NFAJC at less than fair value and thereby causing
material injury, the Department must rely on the facts before it at the
time the determination is made. The Department normally considers
margins of 25 percent or more for EP sales, or 15 percent or more for
CEP sales, and a preliminary ITC determination of material injury
sufficient to impute knowledge of dumping and the likelihood of
resultant material injury.
In the present case, since we have not yet made a preliminary
finding of dumping, the most reasonable source of information
concerning knowledge of dumping is the petition itself. In the
petition, petitioners calculated estimated dumping margins of 91.84
percent. The Department adjusted the estimated dumping margin to 51.74
percent. (See Antidumping Investigation Initiation Checklist dated June
28, 1999, at page 18.) Therefore, because the adjusted margin exceeds
the 25 percent threshold, we preliminarily determine that importers
knew or should have known that the exporters were dumping the subject
merchandise.
As to the knowledge of likely injury from such dumped imports, we
considered the information regarding injury to the domestic industry in
the petition. We also considered other sources of information,
including press reports beginning in October 1998 regarding rising
imports, falling domestic prices resulting from rising imports, and
domestic buyers shifting to foreign suppliers. In addition to this
information, the ITC preliminarily found material injury to the
domestic industry due to imports of NFAJC from the PRC. Therefore, we
preliminarily find that there is a reasonable basis to believe or
suspect that importers knew or should have known that material injury
from the dumped merchandise was likely.
Massive Imports
In determining whether there are ``massive imports'' over a
``relatively short time period,'' the Department ordinarily bases its
analysis on import data for at least the three months preceding (the
base period) and following (the comparison period) the filing of the
petition. Imports normally will be considered massive when imports
during the comparison period have increased by 15 percent or more
compared to imports during the base period. However, as stated in the
Department's regulations, at section 351.206(i), if the Secretary finds
that importers, exporters, or producers had reason to believe, at some
time prior to the beginning of the proceeding, that a proceeding was
likely, then the Secretary may consider a time period of not less than
three months from that earlier time.
In this case, petitioners argue that importers, exporters, or
producers of NFAJC from the PRC had reason to believe that an
antidumping proceeding was likely before the filing of the petition.
The Department examined whether various press reports regarding the
likelihood of the filing of an antidumping petition provided a
sufficient basis for inferring knowledge that a proceeding was likely.
Based on our examination, we find that the press reports in October
1998 are sufficient to establish that, by the end of October 1998,
importers, exporters, or producers knew, or should have known, that a
proceeding was likely. Accordingly, we preliminarily determine that it
is more appropriate to use a comparison period starting in November
1998.
Respondents have argued the comparison supported by petitioners is
distorted. In particular, they point to the nature of apple juice
production in the PRC stating that during the months June--August, no
apples are available and, hence, there is no juice production.
Consequently, shipments during this period would be low. By way of
contrast, respondents argue, the November--March period (the comparison
period advanced by petitioners) represents the height of the production
and shipment season.
We have reviewed the data, and based on the shipments reported by
the companies that provided critical circumstances data, we agree that
the levels of shipments in July and August tend to be small relative to
shipments in other months. The trend of shipments in June is less
clear--sometimes, relatively large shipments have occurred in that
month. We also examined shipments in alleged height of the season
(November--March). Again, the pattern here is not clear: shipments in
April and May can be higher than shipments during months of the high
production period.
Therefore, we agree with respondents that it would be distorted to
compare shipments during a base period of June--October 1998 (i.e.,
including July and August) to shipments during the November 1998--March
1999 period. To address this distortion, we have removed the July and
August 1998 shipments from the amount considered to have been shipped
during the base period and have added into the base period shipments
during April and May 1998. In this way, we are comparing five calendar
months to five calendar months. Also, because there is no consistent
pattern demonstrating that inclusion of the April-June shipments
distorts the base period, we believe we have addressed the production/
shipment problem identified by respondents.
Based on this framework, pursuant to section 733(e) of the Act and
section 351.206(h) of the Department's regulations, we preliminarily
determine that there have been massive imports of NFAJC from the PRC
over a relatively short time for SAAME, Lakeside, Haisheng, Andre,
Nannan, and for all other exporters covered by this investigation,
except Oriental and Zhonglu. For a complete discussion of our analysis,
see Memorandum to Deputy Assistant Secretary Richard W. Moreland, dated
November 3, 1999, on file in Room B-099 of the Department's
headquarters.
[[Page 61837]]
Suspension of Liquidation
In accordance with section 733(e)(2) of the Act, if it issues an
affirmative preliminary determination of sales at less than fair value
in this investigation, the Department will direct the U.S. Customs
Service to suspend liquidation of all entries of NFAJC from the PRC
from all exporters except Oriental and Zhonglu that are entered, or
withdrawn from warehouse, for consumption on or after 90 days prior to
the date of publication in the Federal Register of our preliminary
determination of sales at less than fair value. The Customs Service
shall require a cash deposit or posting of a bond equal to the
estimated preliminary dumping margins reflected in the preliminary
determination of sales at less than fair value published in the Federal
Register. This suspension of liquidation will remain in effect until
further notice.
Final Critical Circumstances Determination
We will make a final determination of critical circumstances when
we make our final determination regarding sales at less than fair value
in this investigation, which is expected to be 75 days after the
preliminary determination regarding sales at less than fair value.
ITC Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of our determination.
This notice is published pursuant to section 777(i) of the Act.
Dated: November 3, 1999.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 99-29751 Filed 11-12-99; 8:45 am]
BILLING CODE 3510-DS-P