[Federal Register Volume 77, Number 165 (Friday, August 24, 2012)]
[Notices]
[Pages 51514-51518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20911]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-812]


Steel Wire Garment Hangers From the Socialist Republic of 
Vietnam: Preliminary Affirmative Determination of Critical 
Circumstances in the Antidumping Duty Investigation

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

DATES:  Effective Date: August 24, 2012.

FOR FURTHER INFORMATION CONTACT: Irene Gorelik at (202) 482-6905, 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 August 2, 2012, the Department of Commerce (``the Department'') 
published its preliminary determination in the antidumping duty 
investigation of steel wire garment hangers from the Socialist Republic 
of Vietnam (``Vietnam'').\1\ On August 2, 2012, Petitioners \2\ filed a 
timely critical circumstances allegation, pursuant to 19 CFR 
351.206(c)(1), alleging that critical

[[Page 51515]]

circumstances exist with respect to imports of the merchandise under 
consideration. On August 2, 2012, the Department issued a letter to the 
TJ Group,\3\ the remaining cooperative mandatory respondent, requesting 
monthly shipment data from August 2011 through May 2012.\4\ On August 
3, 2012, the TJ Group filed a letter withdrawing its participation from 
this investigation.\5\
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    \1\ See Steel Wire Garment Hangers From the Socialist Republic 
of Vietnam: Preliminary Determination of Sales at Less Than Fair 
Value and Postponement of Final Determination, 77 FR 46044 (August 
2, 2012) (``Preliminary Determination'').
    \2\ M&B Metal Products Company, Inc.; Innovative Fabrication 
LLC/Indy Hanger; and US Hanger Company, LLC.
    \3\ The TJ Group consists of: the Pre-Supreme Entity, Infinite 
Industrial Hanger Limited, and TJ Co., Ltd. See, e.g., Preliminary 
Determination, 77 FR at 46047-48, 46053 n. 109.
    \4\ See Department's letter to the TJ Group, dated August 2, 
2012, at 1-2.
    \5\ See TJ Group's Letter of Withdrawal, dated August 3, 2012, 
at 1-2.
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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, 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 was published, the Department must issue its 
preliminary findings of critical circumstances no later than 30 days 
after the allegation was filed.\6\
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    \6\ See 19 CFR 351.206(c)(2)(ii).
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Legal Framework

    Section 733(e)(1) of the Tariff Act of 1930, as amended (``the 
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.

Critical Circumstances Allegation

    In their allegation, Petitioners contend 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'').\7\ 
Petitioners also contend 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.\8\ Finally, as part of 
their allegation and pursuant to 19 CFR 351.206(h)(2), Petitioners 
submitted import statistics for the ``like product'' covered by the 
scope of this investigation for the period between August 2011 and May 
2012, as evidence of massive imports of garment hangers from Vietnam 
during a relatively short period.\9\
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    \7\ See Petitioners' Critical Circumstances Allegation, dated 
August 2, 2012, at 2-3.
    \8\ See id. at 3-4.
    \9\ See id. at 4-5, Attachment 1.
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Analysis

    The Department's normal practice in determining whether critical 
circumstances exist pursuant to the statutory criteria has been to 
examine evidence available to the Department, such as: (1) The evidence 
presented in Petitioners' critical circumstances allegation; (2) import 
statistics released by the ITC; and (3) shipment information submitted 
to the Department by the respondents selected for individual 
examination.\10\ As further provided below, in determining whether the 
above statutory criteria have been satisfied in this case, we have 
examined: (1) The evidence presented in Petitioners' August 2, 2012, 
allegation; (2) information obtained since the initiation of this 
investigation; and (3) the ITC's preliminary injury determination.
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    \10\ See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value and Affirmative Final Determination of Critical 
Circumstances: Circular Welded Carbon Quality Steel Pipe from the 
People's Republic of China, 73 FR 31970, 31972-73 (June 5, 2008) 
(``Carbon Steel Pipe''); Final Determination of Sales at Less Than 
Fair Value and Affirmative Determination of Critical Circumstances: 
Small Diameter Graphite Electrodes from the People's Republic of 
China, 74 FR 2049, 2052-53 (January 14, 2009) (``SDGE'').
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Section 733(e)(1)(A)(i) of the Act: History of Dumping and Material 
Injury by Reason of Dumped Imports in the United States or Elsewhere of 
the Subject Merchandise

    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.\11\ In this case, the current investigation of the subject 
merchandise marks the first instance that the Department has examined 
whether the goods are dumped into the United States. As a result, the 
Department previously has not imposed an antidumping duty order on the 
subject merchandise. Moreover, the Department is not aware of any 
antidumping duty order on subject merchandise from Vietnam in another 
country. Therefore, the Department finds no history of injurious 
dumping of the subject merchandise pursuant to section 733(e)(1)(A)(i) 
of the Act.
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    \11\ See Carbon Steel Pipe, 73 FR at 31972-73; SDGE, 74 FR 2052-
53.
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Section 733(e)(1)(A)(ii): The Importer Knew or Should Have Known That 
Exporter Was Selling at Less Than Fair Value and That There Was Likely 
To Be Material Injury

    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

[[Page 51516]]

at LTFV.\12\ The Department preliminarily determined a margin of 135.81 
percent for the TJ Group, which was also assigned as the separate rate 
to the non-selected separate rate applicants.\13\ Additionally, the 
Department preliminarily assigned a margin of 187.51 percent, as 
adverse facts available (``AFA'') to the Vietnam-wide entity, which 
includes one of the mandatory respondents, South East Asia Hamico 
Export Joint Stock Company (``Hamico'').\14\ Therefore, because the 
preliminary margins are 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 the 
merchandise under consideration at LTFV.
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    \12\ See, e.g., Carbon and Alloy Steel Wire Rod From Germany, 
Mexico, Moldova, Trinidad and Tobago, and Ukraine: Preliminary 
Determination of Critical Circumstances, 67 FR 6224, 6225 (February 
11, 2002); Affirmative Preliminary Determination of Critical 
Circumstances: Magnesium Metal from the People's Republic of China, 
70 FR 5606, 5607 (February 3, 2005).
    \13\ See Preliminary Determination, 77 FR at 46053.
    \14\ See id.
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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.\15\ 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.\16\ Here, the ITC found that ``there is a reasonable 
indication that an industry in the United States is materially injured 
by reason of imports from Taiwan and Vietnam of steel wire garment 
hangers, provided for in subheading 7326.20.00 of the Harmonized Tariff 
Schedule of the United States * * *.'' \17\
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    \15\ See, e.g., Certain Potassium Phosphate Salts from the 
People's Republic of China: Preliminary Affirmative Determination of 
Critical Circumstances in the Antidumping Duty Investigation, 75 FR 
24572, 24573 (May 5, 2010) (``Salt Critical Circumstances Prelim'').
    \16\ See, e.g., Carbon and Alloy Steel Wire Rod From Germany, 
Mexico, Moldova, Trinidad and Tobago, and Ukraine: Preliminary 
Determination of Critical Circumstances, 67 FR 6224, 6225 (February 
11, 2002); Affirmative Preliminary Determination of Critical 
Circumstances: Magnesium Metal from the People's Republic of China, 
70 FR 5606, 5607 (February 3, 2005).
    \17\ See Steel Wire Garment Hangers from Taiwan and Vietnam, 
Investigation Nos. 701-TA-487 and 731-TA-1197-1198 (Preliminary), 77 
FR 9701 (February 17, 2012) (``ITC Prelim'').
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Section 733(e)(1)(B): Whether There Have Been Massive Imports of the 
Subject Merchandise 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.\18\ 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'').\19\
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    \18\ See 19 CFR 351.206(i).
    \19\ See Salt Critical Circumstances Prelim, 75 FR at 24574.
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    In their August 2, 2012, allegation, Petitioners maintained that 
importers, exporters, or foreign producers gained knowledge that this 
proceeding was possible when the petition for an antidumping duty 
investigation was filed on December 29, 2011.\20\ Petitioners noted 
that when a petition is filed in the second half of a month, the month 
following the filing is treated as part of the post-petition 
period.\21\ Petitioners also included in their allegation U.S. import 
data collected from the ITC's Dataweb.\22\ Based on this data, 
Petitioners provided data for a five-month base period (August 2011 
through December 2011) and a five-month comparison period (January 2012 
through May 2012), the most recent data available at the time of 
filing, in showing whether imports were massive.\23\ Therefore, based 
on the date of the filing of the petition, i.e., December 29, 2012, 
which was in the second half of the month, the Department agrees with 
Petitioners that January 2012 is the month in which importers, 
exporters, or producers knew or should have known an antidumping duty 
investigation was likely, and falls within the comparison period. We 
also agree that using a five-month base period and a five-month 
comparison period for import analysis is reasonable, as the ITC's 
Dataweb contained data up through May 2012, at the time of filing.\24\
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    \20\ See Petitioners' Critical Circumstances Allegation dated 
August 2, 2012, at 4.
    \21\ See id. at 4.
    \22\ See id. at 5.
    \23\ See id. at Attachment 1. At the time of filing, import data 
was available only through May 2012.
    \24\ See ``Memorandum to the File, from Irene Gorelik, Analyst, 
Office 9; Antidumping Duty Investigation of Steel Wire Garment 
Hangers from the Socialist Republic of Vietnam: Preliminary 
Affirmative Critical Circumstances Memorandum,'' (``Dataweb Memo'') 
dated concurrently with this notice at Exhibits I-II; see also 
Petitioners' Critical Circumstances Allegation at Attachment I.
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The TJ Group

    It has been the Department's practice to conduct its massive 
imports analysis based on the experience of investigated companies, 
using the reported monthly shipment data for the base and comparison 
periods.\25\ However, as noted above, on August 3, 2012, the TJ Group 
withdrew its participation from this investigation, thus it did not 
respond to the Department's request for monthly shipment data for the 
base and comparison periods.\26\ Therefore, the Department 
preliminarily determines that pursuant to sections 776(a)(2)(A) and (C) 
of the Act, use of the facts otherwise available are necessary in 
reaching the applicable determination under this title with respect to 
the TJ Group.
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    \25\ See, e.g., Carbon Steel Pipe, 73 FR at 31972-73; SDGE, 74 
FR 2052-53.
    \26\ See the Department's letter to the TJ Group dated August 2, 
2012; see also TJ Group's Letter of Withdrawal dated August 3, 2012.
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    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 TJ Group withdrew its participation from this 
investigation and from the scheduled verification of its books and 
records. 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 so that the TJ Group does not obtain a more 
favorable result by failing to cooperate than if it had fully 
cooperated. Accordingly, we preliminarily find that there were massive 
imports of merchandise from the TJ Group, pursuant to our practice.\27\
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    \27\ See SDGE, 74 FR at 2052-2053.
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Separate Rate Respondents

    It has also been the Department's practice to conduct its massive 
imports analysis of the separate rate respondents based on the 
experience of investigated companies.\28\ Thus, we did not request 
monthly shipment information from the three separate rate respondents. 
However, where mandatory respondents received AFA, we have not imputed 
adverse inferences of massive imports to the non-individually examined

[[Page 51517]]

companies receiving a separate rate. Instead, the Department has relied 
upon the ITC's Dataweb import statistics, where appropriate, in 
determining whether there have been massive imports for the separate 
rate respondents. Accordingly, as the basis for determining whether 
imports were massive for these separate rate respondents, we are 
relying on the ITC's Dataweb import statistics as evidence that imports 
in the post-petition period were massive for those companies. As stated 
above, in this case, the ITC's Dataweb import volume data shows an 
increase of 19.62 percent of steel wire garment hanger imports from 
Vietnam during the comparison period.\29\ Thus, pursuant to 19 CFR 
351.206(h), we determine that this increase, being greater than 15 
percent, shows that imports in the five-month comparison period were 
massive for the separate rate respondents.
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    \28\ See, e.g., Salt Critical Circumstances Prelim, 75 FR at 
24575; Carbon Steel Pipe, 73 FR at 31972-73; and SDGE, 74 FR at 
2053.
    \29\ See Dataweb Memo at Exhibits I-II; see also Petitioners' 
Critical Circumstances Allegation at Attachment I.
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Vietnam-Wide Entity (Including Hamico) and the Application of AFA

    In this investigation, the Department selected Hamico and the TJ 
Group as mandatory respondents for individual examination.\30\ In the 
Preliminary Determination, the Department determined that there were 
exporters/producers of the merchandise under investigation during the 
period of investigation from Vietnam, including Hamico,\31\ that 
either: (1) Did not respond to the Department's request for 
information, or (2) failed to provide information that was not 
available on the record but necessary to calculate an accurate dumping 
margin. Therefore, pursuant to 776(a)(2)(A), (B), and (C) of the Act we 
treated these Vietnamese exporters/producers, including Hamico, as part 
of the Vietnam-wide entity because they did not qualify for a separate 
rate.\32\
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    \30\ See ``Memorandum to Christian Marsh, Deputy Assistant 
Secretary for Antidumping and Countervailing Duty Operations, from 
James C. Doyle, Director, Office 9; Antidumping Duty Investigation 
of Steel Wire Garment Hangers from the Socialist Republic of 
Vietnam: Respondent Selection,'' dated February 16, 2012.
    \31\ We preliminarily found that Hamico failed to provide the 
information requested by the Department in a timely manner and in 
the form required, and significantly impeded the Department's 
ability to calculate an accurate margin. The Department was unable 
to calculate a margin without the necessary information, requiring 
the application of facts otherwise available to Hamico for the 
purpose of the Preliminary Determination. See Preliminary 
Determination, 77 FR at 46049-51.
    \32\ See id.
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    Further, information on the record indicates that the Vietnam-wide 
entity was non-cooperative because certain companies did not respond to 
our requests for information.\33\ As a result, pursuant to section 
776(b) of the Act, we preliminarily found that the use of AFA was 
warranted to determine the Vietnam-wide rate.\34\ As AFA, we 
preliminarily assigned to the Vietnam-wide entity a rate of 187.51 
percent, which is the highest transaction-specific rate calculated for 
the TJ Group.\35\
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    \33\ See id.
    \34\ See id.
    \35\ See id., 77 FR at 46053.
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    Because the Vietnam-wide entity has been unresponsive for the 
duration of the proceeding, the record does not contain shipment data 
from the Vietnam-wide entity for purposes of our critical circumstances 
analysis. Therefore, there is no verifiable information on the record 
with respect to the Vietnam-wide entity's base and comparison period 
shipment 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, (C) significantly 
impedes a proceeding under this title, or (D) provides such information 
but the information cannot be verified as provided in section 782(i), 
the administering authority and the Commission shall, subject to 
section 782(d), 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 Vietnam-wide entity has been non-cooperative 
during the entire proceeding.\36\ 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 so that the 
Vietnam-wide entity does not obtain a more favorable result by failing 
to cooperate than if it had fully cooperated. Accordingly, as we have 
done under similar factual scenarios in other proceedings, we 
preliminarily find that there were massive imports of merchandise from 
the Vietnam-wide entity.\37\
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    \36\ See id.
    \37\ See, e.g., Salt Critical Circumstances Prelim, 75 FR at 
24572-24573.
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Preliminary Affirmative Determination of Critical Circumstances

    Record evidence indicates that importers of steel wire garment 
hangers 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, we have imputed that the Vietnam-
wide entity and the TJ Group has massive imports during a relatively 
short period. Lastly, record evidence shows that the separate rate 
respondents 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 the merchandise under 
consideration from the Vietnam-wide entity (which includes Hamico), the 
TJ Group, and the separate rate respondents (CTN Limited Company, Ju Fu 
Co., Ltd., and Triloan Hangers, Inc.) in this antidumping duty 
investigation.\38\
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    \38\ See section 733(f) of the Act; 19 CFR 351.206(c)(2)(ii).
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Suspension of Liquidation

    In accordance with section 703(e)(2)(A) of the Act, we are 
directing the U.S. Customs and Border Protection to suspend liquidation 
of any unliquidated entries of the merchandise under consideration from 
Vietnam entered, or withdrawn from warehouse for consumption, on or 
after May 4, 2012, which is 90 days prior to the date of publication of 
the Preliminary Determination in the Federal Register.

ITC Notification

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

Public Comment

    In the Preliminary Determination, the Department stated that case 
briefs or other written comments may be submitted to the Assistant 
Secretary for Import Administration no later than seven days after the 
date the final verification report is issued.\39\ However, as noted 
above, the TJ Group withdrew from participation in this investigation, 
including the scheduled verification. Consequently, as there were no 
other verifications scheduled for this proceeding, the Department is 
setting the public comment deadline herein. Therefore, case briefs 
addressing any issues in the Preliminary Determination or this 
preliminary affirmative determination of critical circumstances

[[Page 51518]]

may be submitted to the Assistant Secretary for Import Administration 
no later than seven days after the publication date of this notice. 
Rebuttal briefs, limited to issues raised in case briefs, are due no 
later than five days after the deadline for submitting case briefs.\40\ 
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. All submissions to 
the Department, including case briefs and rebuttal briefs, must be 
filed electronically using Import Administration's Antidumping and 
Countervailing Duty Centralized Electronic Service System (``IA 
ACCESS''). An electronically filed document must be received 
successfully in its entirety by the Department's electronic records 
system, IA ACCESS, by 5 p.m. Eastern Standard Time, on the date of the 
established deadline, if applicable. Finally, this notice is a public 
document and is on file electronically via IA ACCESS. IA ACCESS is 
available to registered users at http://iaaccess.trade.gov and in the 
Central Records Unit, room 7046 of the main Department of Commerce 
building.
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    \39\ See Preliminary Determination, 77 FR at 46054.
    \40\ See 19 CFR 351.309(c)(1)(i), (d)(1).
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    This determination is published pursuant to sections 733(f) and 
777(i) of the Act and 19 CFR 351.206(c)(2)(ii).

    Dated: August 20, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-20911 Filed 8-23-12; 8:45 am]
BILLING CODE 3510-DS-P