[Federal Register Volume 75, Number 97 (Thursday, May 20, 2010)]
[Notices]
[Pages 28237-28239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12144]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-954]


Certain Magnesia Carbon Bricks From the People's Republic of 
China: Notice of Preliminary Affirmative Determination of Critical 
Circumstances

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

DATES: Effective Date: May 20, 2010.

FOR FURTHER INFORMATION CONTACT: Paul Walker at (202) 482-0413, AD/CVD 
Operations, Office 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230.

Background

    On March 12, 2010, the Department of Commerce (``Department'') 
published in the Federal Register its preliminary determination in the 
antidumping duty investigation of certain magnesia carbon bricks 
(``bricks'') from the People's Republic of China (``PRC''). See Certain 
Magnesia Carbon Bricks From the People's Republic of China: Preliminary 
Determination of Sales at Less Than Fair Value, 75 FR 11847 (March 12, 
2010) (``Preliminary Determination''). On April 21, 2010, the 
Department published in the Federal Register its amended preliminary 
determination in the antidumping duty investigation of bricks from the 
PRC. See Certain Magnesia Carbon Bricks From the People's Republic of 
China: Amended Preliminary Determination of Sales at Less Than Fair 
Value, 75 FR 20813 (April 21, 2010).
    On April 15, 2010, Petitioner \1\ filed a timely critical 
circumstances allegation, pursuant to 19 CFR 351.206, alleging that 
critical circumstances exist with respect to imports of the merchandise 
under consideration. On April 23, 2010, RHI Refractories Liaoning Co., 
Ltd (``RHI''), a mandatory respondent in this investigation, submitted 
comments on Petitioner's critical circumstances allegation. On April 
27, 2010, RHI submitted information on its exports from January 2009 
through February 2010, as requested by the Department.
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    \1\ Resco Products, Inc.
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    In accordance with 19 CFR 351.206(c)(1), when a critical 
circumstances allegation is filed 30 days or more before the scheduled 
date of the final determination (as was done in this case), the 
Department will issue a preliminary finding whether there is a 
reasonable basis to believe or suspect that critical circumstances 
exist. Because the critical circumstances allegation in this case was 
submitted after the Preliminary Determination, the Department will 
normally issue its preliminary findings of critical circumstances not 
later than 30 days after the allegation was filed. See 19 CFR 
351.206(c)(2)(ii).

Legal Framework

    Section 733(e)(1) of the Tariff Act of 1930, as amended (``Act''), 
provides that the Department, upon receipt of a timely allegation of 
critical circumstances, will determine whether 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.
    Further, 19 CFR 351.206(h)(1) 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, 19 CFR 
351.206(h)(2) provides that, ``{i{time} n general, unless the imports 
during the `relatively short period' * * * have increased by at least 
15 percent over the imports during an immediately preceding period of 
comparable duration, the Secretary will not consider the imports 
massive.'' 19 CFR 351.206(i) defines ``relatively short period'' 
generally as the period starting on the date the proceeding begins 
(i.e., the date the petition is filed) and ending at least three months 
later. This section of the regulations further provides 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,'' then the Department may 
consider a period of not less than three months from that earlier time. 
See 19 CFR 351.206(i).

Allegation

    In its allegation, Petitioner contends that, based on the dumping 
margins assigned by the Department in the Preliminary Determination, 
importers knew or should have known that the merchandise under 
consideration was being sold at less than fair value (``LTFV''). 
Petitioner also contends that, based on the preliminary determination 
of injury by the U.S. International Trade Commission (``ITC''), there 
is a reasonable basis to impute importers' knowledge that material 
injury is likely by reason of such imports. In its allegation, 
Petitioner included import statistics for the four different harmonized 
tariff subheadings provided in the scope of this investigation for the 
period February 2009 through December 2009. See letter from Petitioner, 
regarding ``Allegation of Critical Circumstances,'' dated April 15, 
2010 (``Petitioner's Allegation''), at 3-4.

Analysis

    In determining whether the above statutory criteria have been 
satisfied in this case, we examined: (1) The evidence presented in 
Petitioner's April 15, 2010, allegation; (2) evidence obtained since 
the initiation of this investigation; and (3) the ITC's preliminary 
injury determination.

History of Dumping

    In determining whether a history of dumping and material injury 
exists, the Department generally has considered current or previous 
antidumping duty orders on subject merchandise from the country in 
question in the United States and current orders in any other 
country.\2\ In its April 15, 2010, submission, Petitioner made no 
statement concerning a history of dumping bricks from the PRC. However, 
the ITC notes in its preliminary determination that there are 
antidumping orders in the European Union and Turkey on bricks from the 
PRC, dated October 6, 2005 and

[[Page 28238]]

September 1, 2007, respectively.\3\ There is no evidence on the record 
that these orders are not still in place. Therefore, the Department 
finds that there is a history of injurious dumping of the merchandise 
under consideration from the PRC pursuant to section 733(e)(1)(A)(i) of 
the Act.
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    \2\ See, e.g., Certain Oil Country Tubular Goods From the 
People's Republic of China: Notice of Preliminary Determination of 
Sales at Less Than Fair Value, Affirmative Preliminary Determination 
of Critical Circumstances and Postponement of Final Determination, 
74 FR 59117, 59119 (November. 17, 2009) (``OCTG Prelim'') unchanged 
in Certain Oil Country Tubular Goods From the People's Republic of 
China: Final Determination of Sales at Less Than Fair Value, 
Affirmative Final Determination of Critical Circumstances and Final 
Determination of Targeted Dumping, 75 FR 20335 (April19, 2010).
    \3\ See Certain Magnesia Carbon Bricks From China and Mexico, 
Investigation Nos. 701-TA-468 and 731-TA-1166-1167 (Preliminary), 
USITC Publication 4100 (September 2009), at VII-5.
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Imputed Knowledge of Injurious Dumping

    In determining whether an importer knew or should have known that 
the exporter was selling subject merchandise at LTFV and that there was 
likely to be material injury by reason of such sales, the Department 
must rely on the facts before it at the time the determination is made. 
The Department generally bases its decision with respect to knowledge 
on the margins calculated in the preliminary determination and the 
ITC's preliminary injury determination.
    The Department normally considers margins of 25 percent or more for 
export price sales and 15 percent or more for constructed export price 
sales sufficient to impute importer knowledge of sales at LTFV.\4\ The 
Department preliminarily determined margins of 130.96 percent for the 
non-selected separate rate applicants, 236.00 percent for the PRC-wide 
entity, 129.17 percent for RHI, and 132.74 percent for Liaoning 
Mayerton Refractories Co., Ltd. and Dalian Mayerton Refractories Co., 
Ltd. (collectively, ``Mayerton''). Therefore, as we preliminarily 
determined margins greater than 25 percent for all producers and 
exporters, we preliminarily find, with respect to all producers and 
exporters, that there is a reasonable basis to believe or suspect that 
importers knew, or should have known, that exporters were selling 
subject merchandise at LTFV.
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    \4\ See, e.g., Affirmative Preliminary Determination of Critical 
Circumstances: Magnesium Metal From the People's Republic of China, 
70 FR 5606, 5607 (February 3, 2005) (``Magnesium Metal CC Prelim''), 
unchanged in Final Determination of Sales at Less Than Fair Value 
and Affirmative Critical Circumstances: Magnesium Metal From the 
People's Republic of China, 70 FR 9037 (February 24, 2005).
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    In determining whether an importer knew or should have known that 
there was likely to be material injury caused by reason of such 
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 material injury is likely by reason of such imports.\5\ 
Here, the ITC found that that ``there is a reasonable indication that 
an industry in the United States is materially injured, or threatened 
with material injury by reason of imports from China and Mexico of 
certain magnesia carbon bricks. * * * '' \6\ Therefore, the Department 
preliminarily finds 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 sales at LTFV of subject merchandise 
from the PRC.
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    \5\ See Magnesium Metal CC Prelim, 70 FR at 5607.
    \6\ See Investigation Nos. 701-TA-468 and 731-TA-116667 
(Preliminary) Certain Magnesia Carbon Bricks From China, 74 FR 49889 
(September 29, 2009).
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Massive Imports Over a Relatively Short Period

    Pursuant to 19 CFR 351.206(h)(2), the Department will not consider 
imports to be massive unless imports in the comparison period have 
increased by at least 15 percent over imports in the base period. The 
Department normally considers a ``relatively short period'' as the 
period beginning on the date the proceeding begins and ending at least 
three months later. See 19 CFR 351.206(i). For this reason, the 
Department normally compares the import volumes of the subject 
merchandise for at least three months immediately preceding the filing 
of the petition (i.e., the ``base period'') to a comparable period of 
at least three months following the filing of the petition (i.e., the 
``comparison period''). Id.
    In its April 15, 2010, allegation, Petitioner maintained that 
importers, exporters, or foreign producers gained knowledge that this 
proceeding was possible when they filed the Petition on July 29, 2009. 
See Petitioner's Allegation at 4. Petitioner also included in its 
allegation U.S. import data, which used a five-month base period (March 
2009 through July 2009) and a five-month comparison period (August 2009 
through December 2009) in showing whether imports were massive. The 
Department, however, has used a seven-month base and comparison period 
in its analysis, the maximum amount of data which could be 
collected.\7\
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    \7\ See, e.g., Final Determination of Sales at Less Than Fair 
Value and Partial Affirmative Determination of Critical 
Circumstances: Certain Polyester Staple Fiber From the People's 
Republic of China, 72 FR 19690, 19692 (April 19, 2007).
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    Based on the date the Petition was filed, i.e., July 29, 2009, the 
Department agrees with Petitioner that at this time importers, 
exporters, or producers knew or should have known an antidumping duty 
investigation was likely, and therefore July falls within the base 
period.
A. RHI
    The Department requested monthly shipment information from RHI, a 
mandatory respondent in this investigation. We determine that, based on 
a seven-month comparison period, RHI's imports were massive. 
Specifically, RHI's import data show an increase of greater than 15 
percent of brick imports from the PRC from the base to the comparison 
period.\8\ Thus, pursuant to 19 CFR 351.206(h), we determine that this 
increase, being greater than 15 percent, shows that imports in the 
comparison period were massive for RHI.
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    \8\ See Memo to The File, from Dana Griffies, Import Policy 
Analyst, through Scot T. Fullerton, Program Manager, regarding 
``Investigation of Magnesia Carbon Bricks From the People's Republic 
of China: Critical Circumstances Analysis,'' dated concurrently with 
this Memo (``Critical Circumstances Memo'').
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B. Mayerton
    In this investigation, the Department selected Mayerton and RHI as 
mandatory respondents.\9\ After the Preliminary Determination, on April 
1, 2010, Mayerton stated that it would no longer participate in the 
instant investigation. See letter from Mayerton, regarding ``Withdrawal 
by Mayerton of Further Participation in the Investigation,'' dated 
April 1, 2010. Because Mayerton is no longer participating in this 
investigation, we were unable to obtain shipment data from Mayerton for 
purposes of our critical circumstances analysis, and thus, there is no 
verifiable information on the record with respect to its export 
volumes.
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    \9\ See Memorandum to James C. Doyle, Director, Office IX, from 
Paul Walker, Senior Case Analyst, through Scot Fullerton, Program 
Manager, Office IX; regarding ``Antidumping Duty Investigation of 
Certain Magnesia Carbon Bricks From the People's Republic of 
China,'' dated October 6, 2009.
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    Section 776(a)(2) of the Act provides that, if an interested party 
or any other person (A) withholds information that has been requested 
by the administering authority or the Commission under this title, (B) 
fails to provide such information by the deadlines for submission of 
the information or in the form and manner requested, subject to 
subsections (c)(1) and (e) of section 782 of the Act, (C) significantly 
impedes a proceeding under the Act, or (D) provides such information 
but the information cannot be verified as provided in section 782(i) of 
the Act, the

[[Page 28239]]

Department shall, subject to section 782(d) of the Act, use the facts 
otherwise available in reaching the applicable determination under this 
title. Furthermore, section 776(b) of the Act provides that, if a party 
has failed to act to the best of its ability, the Department may apply 
an adverse inference.
    Thus, for the purposes of critical circumstances, we have applied 
adverse facts available (``AFA'') to Mayerton in accordance with 
sections 776(a) and (b) of the Act. Accordingly, as AFA we 
preliminarily find that there were massive imports of merchandise from 
Mayerton.
C. Separate Rate Applicants
    As noted above, we requested seven months of shipment information 
from RHI, a mandatory respondent in this investigation, and determined 
that RHI's imports were massive. Because it has been the Department's 
practice to conduct its massive imports analysis of separate rate 
companies based on the experience of investigated companies,\10\ we did 
not request monthly shipment information from the separate rate 
applicants. The Department has relied upon RHI's import data in 
determining whether there have been massive imports for the separate 
rate companies. Accordingly, based on RHI's import data, we find that 
imports in the post-petition period were massive for those companies 
because RHI's import volume is greater than 15 percent when comparing 
the base period to the comparison period. See Critical Circumstances 
Memo. Thus, pursuant to 19 CFR 351.206(h), we determine that this 
increase, being greater than 15 percent, shows that imports in the 
comparison period were massive for the separate rate companies.
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    \10\ See, e.g., OCTG, 74 FR at 59121.
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D. PRC-Wide Entity
    Because the PRC-wide entity did not cooperate with the Department 
by not responding to the Department's antidumping questionnaire, we 
were unable to obtain shipment data from the PRC-wide entity for 
purposes of our critical circumstances analysis, and thus there is no 
verifiable information on the record with respect to its export 
volumes.
    Section 776(a)(2) of the Act provides that, if an interested party 
or any other person (A) withholds information that has been requested 
by the administering authority or the Commission under this title, (B) 
fails to provide such information by the deadlines for submission of 
the information or in the form and manner requested, subject to 
subsections (c)(1) and (e) of section 782 of the Act, (C) significantly 
impedes a proceeding under the Act, or (D) provides such information 
but the information cannot be verified as provided in section 782(i) of 
the Act, the Department shall, subject to section 782(d) of the Act, 
use the facts otherwise available in reaching the applicable 
determination under this title.
    Furthermore, section 776(b) of the Act provides that, if a party 
has failed to act to the best of its ability, the Department may apply 
an adverse inference. The PRC-wide entity did not respond to the 
Department's request for information. Thus, we are using facts 
available, in accordance with section 776(a) of the Act, and, pursuant 
to section 776(b) of the Act, we also find that AFA is warranted 
because the PRC-wide entity has not acted to the best of its ability in 
not responding to the request for information. Accordingly, as AFA we 
preliminarily find that there were massive imports of merchandise from 
the PRC-wide entity.\11\
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    \11\ See OCTG, 74 FR at 59121.
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Critical Circumstances

    Record evidence indicates that importers of the merchandise under 
consideration knew, or should have known, that exporters were selling 
the merchandise at LTFV, and that there was likely to be material 
injury by reason of such sales. In addition, record evidence indicates 
that RHI, Mayerton, the separate rate applicants and the PRC-wide 
entity had massive imports during a relatively short period. Therefore, 
in accordance with section 733(e)(1) of the Act, we preliminarily find 
that there is reason to believe or suspect that critical circumstances 
exist for imports of subject merchandise from RHI, Mayerton, the 
separate rate applicants and the PRC-wide entity in this antidumping 
duty investigation.

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of our preliminary determination.

Public Comment

    As noted in the Preliminary Determination, case briefs or other 
written comments may be submitted to the Assistant Secretary for Import 
Administration no later than seven business days after the date on 
which the final verification report is issued in this proceeding. 
Rebuttal briefs limited to issues raised in case briefs must be 
received no later than five business days after the deadline date for 
case briefs. See 19 CFR 351.309(c)(i) and (d). A list of authorities 
used and an executive summary of issues should accompany any briefs 
submitted to the Department. This summary should be limited to five 
pages total, including footnotes.

Suspension of Liquidation

    With respect to the RHI, Mayerton, the separate rate applicants and 
the PRC-wide entity, in accordance with section 733(e)(2)(A) of the 
Act, we will direct CBP to suspend liquidation of all unliquidated 
entries of bricks from the PRC that were entered, or withdrawn from 
warehouse, for consumption on or after December 14, 2010, which is 90 
days prior to March 12, 2010, the date of publication in the Federal 
Register of our Preliminary Determination in this investigation.
    This determination is published pursuant to section 733(f) of the 
Act and 19 CFR 351.206(c)(2)(ii).

    Dated: May 13, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-12144 Filed 5-19-10; 8:45 am]
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