[Federal Register Volume 84, Number 85 (Thursday, May 2, 2019)]
[Notices]
[Pages 18796-18799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08956]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-849]
Antidumping Duty Investigation on Refillable Stainless Steel Kegs
From Mexico: Preliminary Affirmative Determination of Critical
Circumstances
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Commerce) preliminarily determines
that critical circumstances exist for imports of refillable stainless
steel kegs (kegs) from Mexico.
DATES: Applicable May 2, 2019.
FOR FURTHER INFORMATION CONTACT: Allison Hollander at (202) 482-2805,
AD/CVD Operations, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
Background
In response to petitions filed on September 20, 2018, on behalf of
the American Keg Company LLC (the petitioner),\1\ Commerce initiated
antidumping duty (AD) investigations concerning kegs from Germany,
Mexico, and the People's Republic of China (China) and a countervailing
duty investigation concerning kegs from China.\2\ THIELMANN Mexico S.A.
de C.V. (THIELMANN) is the sole mandatory respondent in the
investigation of kegs from Mexico. On December 3, 2018, THIELMANN
informed Commerce that it did not intend to respond to the initial
questionnaire. On December 10, 2018, the petitioner timely filed an
allegation that critical circumstances exist with respect to imports of
kegs from Mexico.\3\ In accordance with 19 CFR 351.206(c)(2)(i), when a
critical circumstances allegation is submitted more than 20 days before
the scheduled date of the preliminary determination, Commerce must
issue a preliminary finding of whether there is a reasonable basis to
believe or suspect that critical circumstances exist by no later than
the date of the preliminary determination. In the subject AD
investigation, the petitioner requested that Commerce issue a
preliminary critical circumstances determination on an expedited
basis.\4\
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\1\ See the petitioner's Letter, ``Petition for the Imposition
of Antidumping Duties on Imports of Refillable Stainless Steel Kegs
from Germany, Mexico, and the People's Republic of China and
Countervailing Duties on Imports of Refillable Stainless Steel Kegs
from the People's Republic of China,'' dated September 20, 2018 (the
Petition).
\2\ See Refillable Stainless Steel Kegs from the People's
Republic of China, the Federal Republic of Germany, and Mexico:
Initiation of Less-Than-Fair-Value Investigations, 83 FR 52195
(October 16, 2018) (Initiation Notice); see also Refillable
Stainless Steel Kegs from the People's Republic of China: Initiation
of Countervailing Duty Investigation, 83 FR 52192 (October 16,
2018).
\3\ See the petitioner's Letter, ``Refillable Stainless Steel
Kegs from Mexico: Petitioner's Critical Circumstances Allegation,''
dated December 10, 2018 (Allegation).
\4\ Id. at 2.
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Commerce exercised its discretion to toll all deadlines affected by
the partial federal government closure from December 22, 2018, through
the resumption of operations on January 29, 2019.\5\ On March 19, 2019,
Commerce postponed the deadline for the preliminary determination at
the request of the petitioner.\6\ Accordingly, the revised deadline for
the preliminary determination is May 28, 2019.\7\
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\5\ See Memorandum, ``Deadlines Affected by the Partial Shutdown
of the Federal Government,'' dated January 28, 2019. All deadlines
in this segment of the proceeding have been extended by 40 days.
\6\ See Refillable Stainless Steel Kegs from the Federal
Republic of Germany, Mexico and the People's Republic of China:
Postponement of Preliminary Determinations in the Less-Than-Fair-
Value Investigations, 84 FR 10033 (March 19, 2019) (Postponement
Notice).
\7\ Id.
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Section 733(e)(1) of the Tariff Act of 1930, as amended (the Act)
provides that Commerce, upon receipt of a timely filed allegation of
critical circumstances, will preliminarily determine that critical
circumstances exist in AD investigations 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)(2) of Commerce's regulations provides that,
generally, imports must increase by at least 15 percent during the
``relatively short period'' to be considered ``massive'' and Sec.
351.206(i) defines a ``relatively short period'' as normally being the
period beginning on the date the proceeding begins (i.e., the date the
petition is filed) \8\ and ending at least three months later.\9\
Commerce's regulations also provide, however, that, if Commerce 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, Commerce may consider a period of not less than three
months from that earlier time.\10\
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\8\ See 19 CFR 351.102(b)(40) (providing that a proceeding
begins on the date of the filing of a petition).
\9\ See 19 CFR 351.206(h)(2) and (i).
\10\ See 19 CFR 351.206(i).
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Critical Circumstances Allegation
In its allegation, the petitioner contends that, based on the
dumping margin alleged in the Petition, importers knew, or should have
known, that the merchandise under consideration was being sold at less
than fair value.\11\ The 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.\12\
Finally, the petitioner contends that, because verifiable shipment data
do not exist because of the respondent's failure to cooperate in the
investigation, an adverse inference
[[Page 18797]]
can be made that imports were massive during the relevant time
period.\13\
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\11\ See Allegation at 5-9.
\12\ Id. at 9-10.
\13\ Id. at 10-11.
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Critical Circumstances Analysis
Use of Facts Available With Adverse Inferences
Sections 776(a)(1) and (2) of the Act provide that Commerce shall,
subject to section 782(d) of the Act, apply ``facts otherwise
available'' if: Necessary information is not on the record or an
interested party or any other person: (A) Withholds information that
has been requested; (B) fails to provide information within the
deadlines established, or in the form and manner requested by Commerce,
subject to subsections (c)(1) and (e) of section 782 of the Act; (C)
significantly impedes a proceeding; or (D) provides information that
cannot be verified as provided by section 782(i) of the Act. Because
the mandatory respondent THIELMANN has not provided necessary
information in this investigation, we preliminarily find that necessary
information is not on the record, pursuant to section 776(a)(1) of the
Act. Furthermore, because THIELMANN is not participating in this
investigation, we also preliminarily find that THIELMANN withheld
information that was requested by Commerce, significantly impeded this
proceeding, and failed to provide information within the deadlines
established, pursuant to sections 776(a)(2)(A), (B), and (C) of the
Act, respectively. Therefore, we have made this preliminary
determination of critical circumstances on the basis of the facts
otherwise available.
Section 776(b) of the Act provides that Commerce may use an adverse
inference in selecting from among the facts otherwise available when a
party fails to cooperate by not acting to the best of its ability to
comply with a request for information. Further, section 776(b)(2) of
the Act states that an adverse inference may include reliance on
information derived from the petition, the final determination from the
investigation, a previous administrative review, or other information
placed on the record. Because THIELMANN determined not to participate
in this investigation, we find that THIELMANN did not cooperate to the
best of its ability in this investigation, pursuant to section 776(b)
of the Act. Therefore, we find that adverse inferences are warranted in
selecting from the facts available regarding certain aspects of this
preliminary determination of critical circumstances. We detail our use
of adverse inferences in selecting from among the facts otherwise
available below.
History of Dumping and Material Injury/Knowledge of Sales Below Fair
Value and Material Injury
To determine whether there is a history of dumping pursuant to
section 733(e)(1)(A)(i) of the Act, Commerce generally considers
current or previous AD orders on the subject merchandise from the
country in question in the United States and current orders imposed by
other countries with regard to imports of the same merchandise.\14\ In
this case, the current investigation of the subject merchandise marks
the first instance that Commerce has examined whether sales of the
subject merchandise have been made at less than fair value in the
United States. Accordingly, Commerce previously has not imposed an AD
order on the subject merchandise. Moreover, Commerce is not aware of
any AD order on the subject merchandise from Mexico in another country.
Therefore, Commerce 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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\14\ [thinsp]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); 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).
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To determine whether importers knew or should have known that
exporters were selling the subject merchandise at less than fair value,
pursuant section 733(e)(1)(A)(ii) of the Act, we typically consider the
magnitude of dumping margins, including margins alleged in the
petition.\15\ Commerce has found margins of 15 percent or more (for
constructed export price or CEP) to 25 percent or more (for export
price or EP) to be sufficient for this purpose.\16\ Commerce initiated
this AD investigation based on an estimated margin of 18.48 percent for
EP sales. For the reasons discussed above, we find that an adverse
inference is warranted in selecting from the facts available.
THIELMANN's quantity and value
[[Page 18798]]
questionnaire response indicates a mix of EP and CEP sales.\17\
Furthermore, the petition identifies the existence of a U.S. affiliate,
Thielmann US LLC.\18\ As such, as an adverse inference in selecting
from among the facts otherwise available, we preliminarily find that
THIELMANN's sales were a mix of CEP and EP sales. The margin alleged in
the petition exceeds the 15 percent threshold for CEP sales necessary
to impute importer knowledge.\19\ Because THIELMANN's sales were a mix
of CEP and EP sales, and the margin alleged in the petition, the only
relevant fact on the record, exceeds the 15 percent threshold for CEP
sales, we preliminarily find that knowledge of sales at less than fair
value may be imputed to importers. Thus, we preliminarily determine
that importers knew or should have known that exporters in Mexico were
selling subject merchandise at less than fair value, satisfying the
criteria under section 733(e)(1)(A)(ii) of the Act.
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\15\ See, e.g., Antidumping and Countervailing Duty
Investigations of Corrosion-Resistant Steel Products from India,
Italy, the People's Republic of China, the Republic of Korea, and
Taiwan: Preliminary Determinations of Critical Circumstances, 80 FR
68504 (November 5, 2015) (CORE Critical Circumstances Prelim); see
also Certain Corrosion-Resistant Steel Products From India: Final
Determination of Sales at Less Than Fair Value and Final Negative
Determination of Critical Circumstances, 81 FR 35329 (June 2, 2016)
(India Final); Certain Corrosion-Resistant Steel Products From
Italy: Final Determination of Sales at Less Than Fair Value and
Final Affirmative Determination of Critical Circumstances, in Part,
81 FR 35320 (June 2, 2016) (Italy Final); Certain Corrosion-
Resistant Steel Products From the Republic of Korea: Final
Determination of Sales at Less Than Fair Value and Final Affirmative
Determination of Critical Circumstances, 81 FR 35303 (June 2, 2016)
(Korea Final); Certain Corrosion-Resistant Steel Products from the
People's Republic of China: Final Determination of Sales at Less
Than Fair Value and Final Affirmative Critical Circumstances
Determination, in Part, 81 FR 35316 (June 2, 2016) (China Final);
Certain Corrosion-Resistant Steel Products from Taiwan: Final
Determination of Sales at Less Than Fair Value and Final Affirmative
Determination of Critical Circumstances, in Part, 81 FR 35313 (June
2, 2016) (Taiwan Final); Countervailing Duty Investigation of
Certain Corrosion-Resistant Steel Products From the People's
Republic of China: Final Affirmative Determination, and Final
Affirmative Critical Circumstances Determination, in Part, 81 FR
35308 (June 2, 2016) (China CVD Final); Countervailing Duty
Investigation of Certain Corrosion-Resistant Steel Products from
Taiwan: Final Negative Countervailing Duty Determination, 81 FR
35299 (June 2, 2016) (Taiwan CVD Final); Countervailing Duty
Investigation of Certain Corrosion-Resistant Steel Products From
Italy: Final Affirmative Determination and Final Affirmative
Critical Circumstances, in Part, 81 FR 35326 (June 2, 2016) (Italy
CVD Final); Countervailing Duty Investigation of Certain Corrosion-
Resistant Steel Products from the Republic of Korea: Final
Affirmative Determination, and Final Affirmative Critical
Circumstances Determination, in Part, 81 FR 35310 (June 2, 2016)
(Korea CVD Final); Notice of Preliminary Determinations of Critical
Circumstances: Certain Cold-Rolled Carbon Steel Flat Products from
Australia, the People's Republic of China, India, the Republic of
Korea, the Netherlands, and the Russian Federation, 67 FR 19157,
19158 (April 18, 2002) unchanged in Notice of Final Determination of
Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat
Products From Australia, 67 FR 47509 (July 19, 2002), Notice of
Final Determination of Sales at Less Than Fair Value: Certain Cold-
Rolled Carbon Steel Flat Products from the People's Republic of
China, 67 FR 62107 (October 3, 2002), Notice of Final Determination
of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel
Flat Products from India, 67 FR 47518 (July 19, 2002), Notice of
Final Determination of Sales at Less Than Fair Value: Certain Cold-
Rolled Carbon Steel Flat Products From Korea, 67 FR 62124 (October
3, 2002), Notice of Final Determination of Sales at Less Than Fair
Value and Critical Circumstances: Certain Cold-Rolled Carbon Steel
Flat Products From The Netherlands, 67 FR 62112 (October 3, 2002),
Notice of the Final Determination Sales at Less Than Fair Value and
Critical Circumstances: Certain Cold-Rolled Carbon Steel Flat
Products From the Russian Federation, 67 FR 62121 (October 3, 2002).
\16\ Id.; see also Preliminary Determination of Sales at Less
Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from the
People's Republic of China, 62 FR 31972, 31978 (June 11, 1997)
unchanged in Final Determination of Sales at Less Than Fair Value:
Certain Cut-to-Length Carbon Steel Plate From the People's Republic
of China, 62 FR 61964 (November 20, 1997); Notice of Preliminary
Determination of Sales at Less Than Fair Value, Negative Preliminary
Determination of Critical Circumstances and Postponement of Final
Determination: Certain Frozen and Canned Warmwater Shrimp From the
Socialist Republic of Vietnam, 69 FR 42672 (July 16, 2004) unchanged
in Final Determination of Sales at Less Than Fair Value: Certain
Frozen and Canned Warmwater Shrimp From the Socialist Republic of
Vietnam, 69 FR 71005 (December 8, 2004).
\17\ See Letter from THIELMANN, ``Refillable Stainless Steel
Kegs from Mexico: Quantity and Value Questionnaire Response,'' dated
October 24, 2018.
\18\ See Letter to the Secretary of Commerce from the
petitioners, ``Petitions for the Imposition of Antidumping Duties on
Imports of Refillable Stainless Steel Kegs from Germany, Mexico, and
the People's Republic of China and Countervailing Duties on Imports
of Refillable Stainless Steel Kegs from the People's Republic of
China,'' dated September 20, 2018 at Volume I, Exhibit GEN-24 and
Volume IV, Exhibit MEX-AD-1.
\19\ In other preliminary critical circumstances determinations,
Commerce has applied the 15 percent CEP threshold when sale types
were mixed and the majority of the sales were CEP. See e.g.,
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled
Into Modules, From the People's Republic of China: Preliminary
Determination of Sales at Less Than Fair Value, Postponement of
Final Determination and Affirmative Preliminary Determination of
Critical Circumstances, 77 FR 31309 (May 26, 2012) unchanged in
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled
Into Modules, From the People's Republic of China: Final Affirmative
Countervailing Duty Determination and Final Affirmative Critical
Circumstances Determination, 77 FR 63788 (November 17, 2012); Notice
of Preliminary Determination of Sales at Less Than Fair Value,
Postponement of Final Determination, and Affirmative Critical
Circumstances Determination: Bottom Mount Combination Refrigerator-
Freezers From Mexico, 76 FR 67688 (Nov. 2, 2011) unchanged in 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 (March
26, 2012).
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To determine whether importers knew or should have known that there
was likely to be material injury caused by reason of such imports
pursuant to section 733(e)(1)(A)(ii) of the Act, Commerce normally will
look to the preliminary injury determination of the ITC.\20\ If the ITC
finds a reasonable indication of material injury (rather than the
threat of injury) to the relevant U.S. industry, Commerce will normally
determine that a reasonable basis exists to impute to importers
sufficient knowledge of injury by such imports. In the subject AD
investigation, the ITC found that there is a ``reasonable indication''
of material injury to the domestic industry because of the imported
subject merchandise.\21\ Therefore, the ITC's preliminary injury
determination in this investigation is sufficient to impute knowledge
of the likelihood of material injury to importers. Thus, we
preliminarily determine that importers knew, or should have known, that
there was likely to be material injury caused by reason of such
imports, pursuant to section 733(e)(1)(A)(ii) of the Act.
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\20\ 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) unchanged in Certain Potassium Phosphate
Salts from the People's Republic of China: Final Determination of
Sales at Less Than Fair Value and Termination of Critical
Circumstances Inquiry, 75 FR 30377 (June 1, 2010).
\21\ See USITC, Investigation Nos. 70l-TA-610 and 73l-TA-1425-
1427 (Preliminary), Refillable Stainless Steel Kegs From China,
Germany, and Mexico at 1 (November 5, 2018); see also Refillable
Stainless Steel Kegs from China, Germany, and Mexico, 83 FR 56102
(November 9, 2018).
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Massive Imports
In determining whether imports of subject merchandise from Mexico
were ``massive'' over a relatively short period, pursuant to section
733(e)(1)(B) of the Act and 19 CFR 351.206(h), Commerce 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'').
Imports will normally be considered massive when imports during the
comparison period have increased by 15 percent or more compared to
imports during the base period.
As discussed above, we are applying adverse facts available in
reaching our findings for certain aspects of this preliminary
determination of critical circumstances. We do not have information
regarding import volumes for THIELMANN, based on its non-participation
in this investigation. We preliminarily find, on the basis of adverse
facts available, that THIELMANN had massive imports of subject
merchandise over a relatively short period, satisfying the criteria
under section 733(e)(1)(B) of the Act and 19 CFR 351.206(h). Thus, we
preliminarily determine that critical circumstances exist regarding
imports of kegs from Mexico shipped by THIELMANN, pursuant to section
733(e) of the Act and 19 CFR 351.206.
To determine massive imports for all other companies, Commerce's
normal practice is to subtract shipments reported by the cooperating
mandatory respondents from shipment data of subject merchandise
compiled by the ITC.\22\ However, due to the broad nature of the HTSUS
numbers under which the subject merchandise is entered, there are no
reliable shipment data available.\23\ Additionally, there is no
cooperating mandatory respondent in this investigation.\24\ Therefore,
we have made this preliminary determination on whether massive imports
exist for all other companies using adverse facts available, pursuant
to sections 776(a) and (b) of the Act. Accordingly, we preliminarily
find that all other companies have massive imports of subject
merchandise over a relatively short period and, thus, critical
circumstances exist regarding imports of kegs from Mexico produced and/
or exported by all other companies, pursuant to section 733(e) of the
Act and 19 CFR 351.206.
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\22\ See, e.g., CORE Critical Circumstances Prelim and India
Final, Italy Final, Korea Final, China Final, Taiwan Final, China
CVD Final, Taiwan CVD Final, Italy CVD Final, Korea CVD Final.
\23\ See Initiation Notice.
\24\ Commerce sent quantity and value questionnaires to each of
the companies identified in the Petition, but of those five
companies only THIELMANN responded. See Letter from Commerce to
interested parties, ``Quantity and Value Questionnaire for the
Antidumping Duty Investigation of Refillable Stainless Steel Kegs
from Mexico'' (October 11, 2018).
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Final Critical Circumstances Determination
We will issue our final determination concerning critical
circumstances when we issue our final less-than-fair-value
determination. All interested parties will have the opportunity to
address this preliminary determination regarding critical circumstances
in case briefs to be submitted after completion of the preliminary
less-than-fair-value determination, in accordance with Commerce's
instructions to be issued following the publication of the preliminary
determination of sales at less than fair value.
ITC Notification
In accordance with section 733(f) of the Act, we will notify the
ITC of this preliminary determination of critical circumstances.
Suspension of Liquidation
In accordance with section 733(e)(2) of the Act, because we have
[[Page 18799]]
preliminarily found that critical circumstances exist with regard to
all imports of kegs from Mexico, if we make an affirmative preliminary
determination of sales at less than fair value at above de minimis
rates,\25\ we will instruct Customs and Border Protection (CBP) to
suspend liquidation of all entries of subject merchandise that are
entered, or withdrawn from warehouse, for consumption on or after the
date that is 90 days prior to the effective date of ``provisional
measures'' (e.g., the date of publication in the Federal Register of
the notice of an affirmative preliminary determination of sales at less
than fair value at above de minimis rates). At such time, we will also
instruct CBP to require a cash deposit equal to the estimated
preliminary dumping margins reflected in the preliminary determination
published in the Federal Register. The suspension of liquidation will
remain in effect until further notice.
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\25\ Commerce intends to issue its preliminary determinations
concerning the sales at less than fair value investigations no later
than May 28, 2019. See Postponement Notice.
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This notice is issued and published pursuant to sections 733(f) and
777(i)(1) of the Act and 19 CFR 351.206(c).
Dated: April 26, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-08956 Filed 5-1-19; 8:45 am]
BILLING CODE 3510-DS-P