[Federal Register Volume 66, Number 203 (Friday, October 19, 2001)]
[Notices]
[Pages 53207-53209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26449]



[[Page 53207]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[A-533-823]


Notice of Preliminary Determination of Critical Circumstances: 
Silicomanganese From India

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

ACTION: Notice of preliminary determination of critical circumstances; 
silicomanganese from India

-----------------------------------------------------------------------

EFFECTIVE DATE: October 19, 2001.

FOR FURTHER INFORMATION CONTACT: Elfi Blum or Abdelali Elouaradia at 
(202) 482-0197 and (202) 482-1374, respectively; AD/CVD Enforcement, 
Group III, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the statute are 
references to the Tariff Act of 1930, as amended (the Act). In 
addition, unless otherwise indicated, all citations to the Department's 
regulations are references to the provisions codified at 19 CFR part 
351 (2000).

Background

    On May 3, 2001, the Department of Commerce (the Department) 
initiated an investigation to determine whether imports of 
silicomanganese from India are being, or are likely to be, sold in the 
United States at less than fair value (LTFV) (66 FR 22209, May 3, 
2001). On June 11, 2001, the International Trade Commission (ITC) 
published its determination that there is a reasonable indication of 
material injury to the domestic industry from imports of 
silicomanganese from India. On July 16, 2001, the petitioners alleged 
that there is a reasonable basis to believe or suspect that critical 
circumstances exist with respect to imports of silicomanganese from 
India. In accordance with 19 CFR 351.206(c)(2)(i), because the 
petitioners submitted critical circumstances allegations more than 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. In a policy 
bulletin issued on October 8, 1998, the Department stated that it may 
issue a preliminary critical circumstances determination prior to the 
date of the preliminary determinations of sales at less than fair 
value, assuming sufficient evidence of critical circumstances is 
available (see Policy Bulletin 98/4: Timing of Issuance of Critical 
Circumstances Determinations (63 FR 55364)). In accordance with this 
policy, at this time we are issuing the preliminary critical 
circumstances decision in the investigation of silicomanganese from 
India for the reasons discussed below and in the concurrent Memorandum 
from Elfi Blum through Sally Gannon to Barbara Tillman: Antidumping 
Duty Investigation of Silicomanganese from India-Preliminary 
Affirmative Determinations of Critical Circumstances, dated October 4, 
2001 (Critical Circumstances Preliminary Determinations Memorandum), on 
file in Import Administration's Central Records Unit (CRU), Room B-099, 
of the Department of Commerce building.

Critical Circumstances

    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 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, 
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 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, 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.
    In determining whether the above criteria have been satisfied, we 
examined: (1) The evidence presented by petitioners in their July 16, 
2001 and September 7, 2001 letters; (2) exporter-specific shipment data 
requested by the Department on August 2, 2001; (3) United States 
Customs Service import statistics available after the initiation of the 
LTFV investigation; and, (4) the International Trade Commission (ITC) 
preliminary injury determinations.

History of Dumping

    To determine whether there is a history of injurious dumping of the 
merchandise under investigation, in accordance with section 
733(e)(1)(A)(i) of the Act, the Department normally considers evidence 
of an existing antidumping duty order on the subject merchandise in the 
United States or elsewhere to be sufficient. The Department's practice 
has been to rely on the existence of evidence that there is a history 
of dumping of subject merchandise from the country in question to 
either the United States or any other countries. See Preliminary 
Determination of Critical Circumstances: Steel Concrete reinforcing 
Bars From Ukraine and Moldova, 65 FR 70696 (November 27, 2000). In this 
case, we are not aware of any dumping order in any country on 
silicomanganese from India. For this reason, we do not find a history 
of injurious dumping of the subject merchandise from India pursuant to 
section 733(e)(1)(A)(i) of the Act.

Importer Knowledge

    To determine whether there is a reasonable basis to believe or 
suspect that an importer knew or should have known that the exporter 
was selling silicomanganese at LTFV, in accordance with section 
733(e)(1)(ii) of the Act, the Department normally considers margins of 
25 percent or more for EP sales sufficient to impute knowledge of 
dumping. See, e.g., Preliminary Determination of Critical 
Circumstances: Certain Small Diameter Carbon and Alloy Steel Seamless 
Standard, Line and Pressure Pipe from the Czech Republic, 65 FR 33803 
(May 25, 2000). The Department normally bases its preliminary decision 
with respect to knowledge on the margins determined in the preliminary 
determination.
    In this case, because we are issuing our preliminary critical 
circumstance

[[Page 53208]]

determination prior to our preliminary LTFV determination, the 
Department has relied on margin information provided in the petition to 
determine if there is a reasonable basis to believe or suspect that the 
importers knew or should have known that the subject merchandise was 
being sold at LTFV. In the petition, the estimated dumping margin, 
based on a comparison between adjusted U.S. price based on average unit 
value and price(s) in India, is 5.89 percent. The estimated dumping 
margin for price-to-constructed value (CV) comparisons is 86.98 
percent. Because the highest estimated dumping margin calculated in the 
petition for India is greater than 25 percent, there is a reasonable 
basis to impute knowledge of dumping with respect to imports from this 
country. Therefore, we have imputed to importers knowledge of dumping 
of the subject merchandise from each of the two cooperating exporters 
and to importers of subject merchandise from all other producers/
exporters in India.
    Regarding knowledge of material injury by reason of the LTFV sales, 
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 subject 
imports of silicomanganese from India. See Silicomanganese From India, 
Kazakhstan, and Venezuela, 66 FR 31258 (June 11, 2001). As a result, 
the Department has determined that there is a reasonable basis to 
believe or suspect that importers of silicomanganese from India from 
all exporters knew or should have known that there was likely to be 
material injury by reason of dumped imports of the subject merchandise 
from India, in accordance with section 733(e)(1)(ii) of the Act.

Massive Imports

    In determining whether there are ``massive imports'' over a 
``relatively short period,'' pursuant to section 733(e)(1)(B) of the 
Act, the Department normally compares the import volume of the subject 
merchandise for three months immediately preceding the filing of the 
petition (i.e., the base period), to the import volume of subject 
merchandise in the three months following the filing of the petition 
(i.e., the comparison period). However, as stated in Sec. 351.206(i) of 
the Department's regulations, 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. 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.
    In the Critical Circumstances Allegation submitted on July 16, 
2001, petitioners cite an industry publication to document that 
importers, exporters and producers had reason to believe that a 
proceeding was likely prior to the filing of the petition on April 6, 
2001. Petitioners state that, on March 8, 2001, a month before filing 
the petition, Eramet (a petitioner) issued a press release confirming 
that it intended to file an antidumping petition covering imports of 
silicomanganese. This intent was discussed in an industry publication, 
``Ryan's Notes,'' on March 12, 2001, which specified India as a likely 
target. On March 5, 2001, the same industry publication had already 
reported that petitioner ``was on the verge of launching a dumping 
case.'' (See ``Ryan's Notes,'' March 5, 2001, p. 5.) According to 
petitioners, numerous other articles in other industry publications 
demonstrate that, in early March 2001, importers and exporters of 
Indian silicomanganese had reason to believe that an antidumping 
petition covering India was likely. We examined the sources cited by 
petitioners to determine whether they provide a basis for inferring 
knowledge that a proceeding was likely. We find that such industry 
publications, particularly the one cited above, are sufficient to 
establish that, by early March 2001, importers, exporters, and 
producers knew or should have known that a proceeding was likely 
concerning silicomanganese from India.
    With regard to the issue of massive imports, in accordance with our 
current practice (see Notice of Final Determination of Sales at Less 
Than Fair Value: Certain Cold-Rolled Carbon-Quality Steel Products From 
Brazil, 65 FR 5554 (February 4, 2000)), we first considered the 
shipment data reported by the mandatory respondents for the base and 
comparison periods (October 2000 through February 2001 and March 2001 
through July 2001, respectively). We found massive imports for one 
respondent, Universal Ferro & Allied Chemicals (Universal Ferro), based 
on an increase in imports exceeding the required 15 percent, but no 
massive imports for the other respondent, Nava Bharat Ferro Alloys 
(Nava Bharat).
    With respect to the ``all others'' category, we considered the fact 
that we found massive imports for one of the investigated exporters but 
not the other. We also considered whether U.S. Customs Service data, as 
available on the International Trade Commission's Dataweb, would permit 
the Department to analyze imports of subject merchandise. The U.S. 
Customs import data does include low-carbon silicomanganese, which is 
excluded from the scope. However, the PIERS information submitted by 
petitioners indicates that low-carbon imports make up a low percentage 
of total imports. Thus, we believe it is appropriate to use the 
aggregate import data in our analysis of whether there have been 
massive imports from ``all others.'' This data shows massive imports of 
the subject merchandise from India. Even if we were to subtract the 
shipment data provided by the two respondents from the aggregate data 
and to compare the remaining volume of imports in the base period to 
the remaining imports in the comparison period, this would indicate 
that massive imports occurred. See Memorandum to Barbara Tillman 
through Sally Gannon from Elfi Blum: Antidumping Duty Investigation of 
Silicomanganese from India-Preliminary Affirmative and Negative 
Determinations of Critical Circumstances, dated October 4, 2001 
(Critical Circumstances Memorandum). Therefore, we find that there is a 
reasonable basis to believe or suspect that there were massive imports 
from ``all others.''

Conclusion

    Given the above-referenced analysis, we preliminarily determine 
that critical circumstances exist for Universal Ferro and for companies 
in the ``all others'' category, but not for Nava Bharat.

Suspension of Liquidation

    In accordance with section 733(e)(2) of the Act, if the Department 
issues an affirmative preliminary determination of sales at LTFV in the 
investigation with respect to Universal Ferro or the ``all others'' 
category, the Department, at that time, will direct Customs to suspend 
liquidation of all entries of silicomanganese from India from these 
exporters 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 LTFV. 
Customs shall require a cash

[[Page 53209]]

deposit or posting of a bond equal to the estimated preliminary dumping 
margins reflected in the preliminary determination of sales at LTFV 
published in the Federal Register. The suspension of liquidation to be 
issued after our preliminary determination of sales at LTFV will remain 
in effect until further notice.

Final Critical Circumstances Determination

    We will make a final determination concerning critical 
circumstances for India when we make our final determination regarding 
sales at LTFV in the investigation, which will be 75 days (unless 
extended) after the preliminary LTFV determination.

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of our determination.
    This notice is issued and published pursuant to section 777(i) of 
the Act.

    Dated: October 10, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 01-26449 Filed 10-18-01; 8:45 am]
BILLING CODE 3510-DS-P