[Federal Register Volume 82, Number 21 (Thursday, February 2, 2017)]
[Notices]
[Pages 9056-9058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02325]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-533-869]


Certain New Pneumatic Off-the-Road Tires From India: Affirmative 
Amended Final Determination of Sales at Less Than Fair Value and Final 
Negative Determination of Critical Circumstances

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: The Department of Commerce (Department) is amending its final 
negative determination of sales at less-than-fair-value (LTFV) with 
respect to certain new pneumatic off-the-road tires (OTR tires) from 
India to correct ministerial errors in the calculation of the weighted-
average dumping margin of Alliance Tires Private Limited (ATC), one of 
the mandatory respondents in the investigation. Correction of these 
errors results in a revised margin for ATC that is above de minimis, 
and, thus, also results in an affirmative determination of sales at 
LTFV. The Department is also assigning a new ``All-Others'' rate.

DATES: Effective February 2, 2017.

FOR FURTHER INFORMATION CONTACT: Lilit Astvatsatrian or Trisha Tran, 
AD/CVD Operations, Office IV, Enforcement and Compliance, International 
Trade Administration, U.S. Department of Commerce, 1401 Constitution 
Avenue NW., Washington, DC 20230; telephone: (202) 482-6412, or (202) 
482-4852, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On January 6, 2017, the Department publicly announced its Final 
Determination \1\ in the LTFV investigation on OTR tires from India. On 
January 9, 2017, Petitioners \2\ alleged

[[Page 9057]]

that the Department made certain ministerial errors related to the 
application of partial adverse facts available (AFA) in the Final 
Determination.\3\ On January 17, 2017, ATC submitted its rebuttal 
comments.\4\
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    \1\ See Certain New Pneumatic Off-the-Road Tires from India: 
Final Negative Determination of Sales at Less Than Fair Value and 
Final Determination of Critical Circumstances, 82 FR 4848 (January 
17, 2017) (Final Determination), and accompanying Issues and 
Decision Memorandum (Final IDM).
    \2\ Petitioners are Titan Tire Corporation and the United Steel, 
Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial 
and Service Workers International Union, AFL-CIO, CLC (the USW).
    \3\ See Letter from Petitioners, ``Certain New Pneumatic Off-
the-Road Tires from India: Petitioners' Ministerial Error Comments 
regarding ATC,'' dated January 9, 2017 (Petitioners' Comments).
    \4\ See Letter from ATC, ``Certain New Pneumatic Off-the-Road 
Tires from India: ATC Tires Private Limited's Reply to Petitioners' 
Ministerial Error Comments,'' dated January 17, 2017 (ATC's Rebuttal 
Comments).
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    Based on an analysis of the allegations submitted by Petitioners, 
the Department determined that it did not make ministerial errors with 
respect to the application of partial AFA, as defined by section 735(e) 
of the Tariff Act of 1930, as amended (the Act), and 19 CFR 
351.224(f).\5\ However, in the context of evaluating Petitioner's 
allegation, the Department determined that it made ministerial errors 
within the meaning of section 735(e) of the Act and 19 CFR 351.224(f) 
with respect to ATC's freight expenses, home market credit expenses and 
U.S. indirect selling expenses.\6\ Accordingly, the Department revised 
the margin calculation for ATC, and assigned a new ``All-Others'' rate, 
as discussed below.
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    \5\ See Memorandum, ``Antidumping Duty Investigation on Certain 
New Pneumatic Off-the-Road Tires from India: Allegation of 
Ministerial Errors in the Final Determination,'' dated January 26, 
2017 and hereby adopted by this notice (Ministerial Error 
Memorandum).
    \6\ Id.
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Scope of the Investigation

    The products covered by this investigation are OTR tires from 
India. For a complete description of the scope of the investigation, 
see Appendix I of this notice.

Ministerial Errors

    Section 735(e) of the Act, and 19 CFR 351.224(f) define a 
``ministerial error'' as an error ``in addition, subtraction, or other 
arithmetic function, clerical error resulting from inaccurate copying, 
duplication, or the like, and any similar type of unintentional error 
which the Secretary considers ministerial.'' \7\
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    \7\ See section 735(e) of the Act.
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    The Department finds that the purported errors alleged by 
Petitioners' do not constitute ministerial errors within the meaning of 
19 CFR 351.224(f).\8\ Specifically, the Department did not state that 
it intended to determine, as partial AFA, that 66 percent of the value 
of ATC's U.S. sales passed the Cohen's d test in order to apply the 
average-to-transaction methodology.\9\ The Department intentionally 
applied partial AFA to the standard average-to-average differential 
pricing methodology in the final margin program because 65.33 percent 
of the value of ATC's U.S. sales passed the Cohen's d test, and the 
mixed methodology margin did not result in a meaningful difference 
between the standard and mixed methodology margins.\10\ Moreover, the 
Department did not intend, as Petitioners allege, to apply partial AFA 
to all three methodologies, prior to determining whether there was a 
meaningful difference.\11\
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    \8\ See Ministerial Error Memorandum.
    \9\ Id.; see also, Memorandum, ``Antidumping Duty Investigation 
of Certain New Pneumatic Off-the-Road Tires (OTR) from India: 
Analysis of the Final Negative Determination Margin Calculation for 
ATC Tires Private Limited,'' dated January 3, 2017 (ATC's Final 
Analysis Memorandum) at 5-6 and Attachment 2.
    \10\ See Final IDM at 19.
    \11\ Id. at 3-4.
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    Additionally, in reviewing the record, the Department found that: 
(1) The Department inadvertently omitted additional fields reported by 
ATC as part of its minor corrections that should have been part of the 
final margin calculation; (2) ATC did not revise the home market credit 
expenses to include the correct payment dates for the particular sales 
identified as minor corrections at the home market sales verification; 
and (3) the Department inadvertently included the costs associated with 
the unreported sample U.S. sales in the indirect selling expenses. 
These are unintentional errors, similar to the errors identified as 
ministerial errors in the regulations, and, therefore, constitute 
ministerial errors within the meaning of 19 CFR 351.224(f). Therefore, 
the Department corrected these errors in the final margin program by: 
(1) Including the two additional freight expense fields (i.e., OTHFRTU, 
PICKUP_CHGU); (2) revising the home market credit expenses to include 
the correct payment dates for the particular sales identified at the 
home market sales verification; and (3) revising the indirect selling 
expenses to exclude the costs associated with the free sample U.S. 
sales used in the application of partial AFA to those U.S. sales. Based 
on the above analysis, ATC's weighted-average dumping margin increased 
from zero percent to 3.67 percent.

Negative Determination of Critical Circumstances

    In the Final Determination, the Department considered the 
Petitioners' critical circumstances allegation with respect to 
producers and exporters subject to the all others rate and determined 
that the finding for whether critical circumstances exist with respect 
to such producers and exporters was moot because the antidumping duty 
margins for ATC and Balkrishna Industries Limited (BKT), the other 
mandatory respondent, were zero.\12\ ATC's weighted-average dumping 
margin increased from zero percent to 3.67 percent as a result of 
corrections to ministerial errors, which has resulted in a similar 
increase in the ``All-Others'' rate. Accordingly, we are addressing 
whether critical circumstances exist with respect to the ``All-Others'' 
rate.
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    \12\ See Final Determination, 82 FR at 4849.
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    Section 735(a)(3) of the Act provides that the Department will 
determine that critical circumstances exist in antidumping duty 
investigations if: (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 LTFV and that there 
would be material injury by reason of such sales, and (B) there have 
been massive imports of the subject merchandise over a relatively short 
period.
    To determine whether there is a history of dumping and material 
injury, the Department generally considers previous antidumping duty 
orders on subject merchandise from the country in question in the 
United States or current orders imposed by other countries with regard 
to imports of the same merchandise.\13\ Because there is no previous 
antidumping duty order on OTR tires from India or record evidence of 
current orders imposed by other countries with regard to imports of the 
same merchandise, the Department finds that there is no history of 
injurious dumping of OTR tires form India pursuant to section 
735(a)(3)(A)(i) of the Act.
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    \13\ See 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, 59120 (November 17, 2009); 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 (April 19, 2010).
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    Furthermore, the Department normally considers dumping margins of 
25 percent or more for export price sales

[[Page 9058]]

and 15 percent or more for constructed export price sales sufficient to 
impute importer knowledge of sales at LTFV.\14\ The estimated weighted-
average dumping margins in this investigation do not exceed the 
threshold sufficient to impute knowledge of dumping (i.e., 25 percent 
for EP or 15 percent for CEP sales). Therefore, the Department finds 
that there is an insufficient basis to find that importers knew nor 
should have known that exporters in India were selling subject 
merchandise at LTFV.\15\ As such, we find that critical circumstances 
do not exist.
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    \14\ See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value and Affirmative Critical Circumstances 
Determination: Bottom Mount Combination Refrigerator-Freezers from 
Mexico, 77 FR 17422, 17425 (March 26, 2012).
    \15\ See Certain Oil Country Tubular Goods from the Republic of 
Korea: Negative Preliminary Determination of Sales at Less than Fair 
Value, Negative Preliminary Determination of Critical Circumstances 
and Postponement of Final Determination, 79 FR 10480 (February 25, 
2014), unchanged in Certain Oil Country Tubular Goods from the 
Republic of Korea: Final Determination of Sales at Less than Fair 
Value, Negative Final Determination of Critical Circumstances, 79 FR 
41983 (July 18, 2014).
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Amended Final Determination

    As a result of correcting the ministerial errors, we determine that 
the weighted-average dumping margins and cash deposit rates are as 
follows:

------------------------------------------------------------------------
                                                            Cash deposit
                                                Weighted-       rate
                                                 average    adjusted for
             Exporter/ producer                  dumping       subsidy
                                                 margins       offset
                                                (percent)     (percent)
------------------------------------------------------------------------
ATC Tires Private Ltd.......................          3.67          0.00
All-Others..................................          3.67          0.00
------------------------------------------------------------------------

    As stated above, the weighted-average dumping margin for BKT is 
unchanged from the Final Determination (i.e., 0.00 percent).

``All-Others'' Rate

    Section 735(c)(5)(A) of the Act provides that the estimated ``All 
Others'' rate shall be an amount equal to the weighted average of the 
estimated weighted-average dumping margins established for exporters 
and producers individually investigated, excluding any zero or de 
minimis margins, and any margins determined entirely under section 776 
of the Act. As a result of our corrections to ATC's final weighted-
average margin, the only rate that is not de minimis in this 
investigation is the rate calculated for ATC. Consequently, in 
accordance with section 735(c)(5)(A) of the Act, we have assigned the 
rate calculated for ATC as the ``All-Others'' rate, as indicated in the 
``Amended Final Determination Margins'' section above.

Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, the Department 
will instruct U.S. Customs and Border Protection (CBP) to suspend 
liquidation on all appropriate entries of OTR tires from India, except 
as noted below, which were entered, or withdrawn from warehouse, for 
consumption on or after the date of publication of this notice. 
Additionally, because the weighted-average dumping margin for BKT in 
the Final Determination (i.e., 0.00 percent) is unchanged, the 
Department is not directing CBP to suspend liquidation of entries of 
OTR tires from India produced and exported by this entity. The 
instructions suspending liquidation will remain in effect until further 
notice.
    The Department will also instruct CBP to require cash deposits for 
suspended entries equal to the amounts as indicated above, which are 
adjusted for certain countervailable subsidies, where appropriate. The 
all-others rate applies to all producers or exporters not specifically 
listed. For the purpose of determining cash deposit rates, the 
estimated weighted-average dumping margins for imports of subject 
merchandise from India have been adjusted, as appropriate, for export 
subsidies found in the final determination of the companion 
countervailing duty investigation of this merchandise imported from 
India.\16\
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    \16\ See Countervailing Duty Investigation of Certain New 
Pneumatic Off-the-Road Tires from India: Final Affirmative 
Determination, and Final Affirmative Critical Circumstances 
Determination, in Part, 82 FR 2946 (January 10, 2017); see also 
section 772(c)(1)(C) of the Act.
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U.S. International Trade Commission

    In accordance with section 735(d) of the Act, we notified the U.S. 
International Trade Commission (ITC) of the Final Determination and our 
amended final determination. As the preliminary determination was 
negative and the amended final determination is affirmative, in 
accordance with section 735(b)(3) of the Act, the ITC will determine 
within 75 days of the affirmative amended final determination whether 
the domestic industry in the United States is materially injured, or 
threatened with material injury, by reason of imports or sales (or the 
likelihood of sales) for importation of the subject merchandise. If the 
ITC determines that such injury exists, the Department will issue an 
antidumping duty order directing CBP to assess, upon further 
instruction by the Department, antidumping duties on all appropriate 
imports of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the effective date of the 
suspension of liquidation.
    This amended final determination is published in accordance with 
section 735(e) of the Act and 19 CFR 351.224(e).

    Dated: January 30, 2017.
Ronald K. Lorentzen,
Acting Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2017-02325 Filed 2-1-17; 8:45 am]
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