[Federal Register Volume 60, Number 50 (Wednesday, March 15, 1995)]
[Notices]
[Pages 13956-13958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6402]
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DEPARTMENT OF COMMERCE
[A-549-810]
Notice of Preliminary Negative Determination of Critical
Circumstances: Disposable Pocket Lighters From Thailand
AGENCY: International Trade Administration, Import Administration,
Department of Commerce.
EFFECTIVE DATE: March 15, 1995.
FOR FURTHER INFORMATION CONTACT: David R. Boyland, Office of
Countervailing Investigations, Import Administration, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-
4198.
Preliminary Negative Determination of Critical Circumstances: The
Department of Commerce (the ``Department'') published its preliminary
determination of sales at less than fair value in this investigation on
October 24, 1994 (59 FR 53414). On February 1, 1995, petitioner alleged
that critical circumstances exist with respect to imports of the
subject merchandise. On February 10, 1995, we received data from Thai
Merry Co., Ltd. (``Thai Merry''), the respondent in this investigation,
on U.S. shipment to the United States.
In accordance with 19 CFR 353.16(b)(2)(ii), when a critical
circumstances allegation is filed later than 20 days before the
scheduled date of the preliminary determination, we must issue our
preliminary determination no later than 30 days after the allegation is
filed.
Section 733(e)(1) of the Act provides that the Department will
preliminarily determine that critical circumstances exist if we
determine that there is a reasonable basis to believe or suspect:
(A)(i) There is a history of dumping in the United States or
elsewhere of the class or kind of merchandise which is the subject of
the investigation, 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 merchandise which is the subject of the
investigation at less than its fair value, and
(B) there have been massive imports of the class or kind of
merchandise which is the subject of the investigation over a relatively
short period. [[Page 13957]]
History of Dumping: To support the claim that the first prong of
the statutory requirement is met, petitioner cited the European
Community's November 19, 1991, imposition of antidumping duties on gas-
fueled, non-refillable pocket flint lighters from the People's Republic
of China, Japan, Korea, and Thailand (Council Regulation (EEC) No.
3433/91). Therefore, because petitioner established a history of
dumping of the subject merchandise, we are not required to consider
whether the importer knew or should have known that the exporter was
selling the subject merchandise at less than fair value.
Massive Imports: Because we have preliminarily determined that the
first statutory criterion is met for finding critical circumstances, we
must consider whether imports of the merchandise have been massive over
a relatively short period in accordance with 19 CFR 353.16(f) and (g).
19 CFR 353.16(f) and 353.16(g) directs the Department to look at
the following factors to determine whether imports have been massive
over a relatively short period of time: (1) The volume and value of the
imports; (2) seasonal trends (if applicable); and (3) the share of
domestic consumption accounted for by the imports.
When examining volume and value data, the Department typically
compares the export volume for equal periods immediately preceding and
following the filing of the petition (see, Preliminary Affirmative
Determination of Critical Circumstances: Certain Cased Pencils From the
People's Republic of China, (59 FR 44128 (August 26, 1994)). Under 19
CFR 353.16(f)(2), unless imports of the subject merchandise have
increased by at least 15 percent, we will not consider the imports to
have been ``massive.''
Because a determination of critical circumstances should be based
on company-specific shipment information (see, Final Determination of
Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat
Products, Certain Cold-Rolled Carbon Steel Flat Products, and Certain
Cut-to-Length Carbon Steel Plate from Belgium, 58 FR 37083 (July 9,
1993)), we requested that Thai Merry provide shipment information for
the period from December 1, 1993 through April 30, 1994 (``pre-
petition'' period) and May 1, 1994 through September 30, 1994 (``post-
petition'' period). Pursuant to section 353.16(g) of the Department's
antidumping regulations, in making critical circumstances
determination, the Department normally considers the period beginning
on the first day of the month of the initiation and ending at least
three months later. The Department considers this period because it is
the period immediately prior to a preliminary determination in which
exporters of the subject merchandise could take advantage of the
knowledge of the dumping investigation to increase exports to the
United States without being subject to antidumping duties (see, Final
Determination of Sales at Less Than Fair Value of Certain Internal-
Combustion, Industrial Forklift Trucks from Japan, (53 FR 12552, April
15, 1988)). For purposes of this final determination we are using as
our comparison period five months prior to and five months subsequent
to the initiation of this investigation.
Based on Thai Merry's shipment data, imports increased by an amount
greater than 15 percent between the pre- and post-petition periods.
Seasonality: We found no evidence of seasonality, pursuant to
section 353.16(1)(ii) of the Department's regulations.
Share of Domestic Consumption: Based on the information supplied in
the critical circumstances allegation, Thai Merry's market share of
domestic consumption (i.e., total imports from Thailand as a percentage
of total domestic consumption) between the pre- and post-petition
periods did not change by an amount greater than three percentage
points. (See, the February 27, 1995 memorandum to Susan H. Kuhbach,
Director of Countervailing Investigations from David R. Boyland, Case
Analyst for a full discussion of this issue.)
Other Factors: Respondent argues that the increase in shipment was
in response to a Consumer Product Safety Commission (``CPSC'')
regulation which came into effect on July 12, 1994, and was not an
attempt to circumvent a potential antidumping duty order.
Respondent also argues that section 353.16(f)(2) and past precedent
allow the Department to consider the impact of the CPSC regulation on
imports in determining whether they were massive. Respondent cites a
DOC position comment in Antidumping Duties: Final Rule which states
that the 15 percent test is ``not intended to limit the Department's
discretion or responsibility to consider in each case the factors
relevant to a decision regarding whether imports are `massive''' (see,
Final Rule, 54 FR 12742, 12751 (March 28, 1989)).
With respect to the increase in shipment between the pre- and post-
petition periods, and the circumstances that surround it, May 1994 is
the month within the post-petition period which has been examined most
closely by the Department. Based on an examination of past imports from
Thailand, the highest volume of imports prior to the post-petition
period occurred in August 1993. May 1994's volume of shipments was the
only month during the post-petition period in which the level of
shipments went outside the range established in August 1993. Hence, the
surge in shipments that occurred in May represented a unique ``spike''
in the trend of shipments.
Also, the information provided to the Department shows that this
dramatic increase in shipments was not sustained. If respondent was
attempting to take advantage of the knowledge of an antidumping
investigation to export prior to suspension of liquidation, we would
expect the increase in shipment to be sustained up until the
preliminary determination. This did not occur.
Finally, a significant percentage of the May 1994 shipments
consisted of standard lighters which were to be banned pursuant to the
July 1994 CPSC regulation. (Note: the CPSC gave notice of the impending
ban on July 12, 1993. Thus, respondent was aware of the CPSC ban one
year prior to its effective date. Additionally, orders shipped in May
1994 would arrive in the United States in June 1994; i.e., prior to the
CPSC ban.) Based on this information, it is reasonable to assume that
the CPSC regulation drove the sharp increase in imports between the
pre- and post-petition periods, as opposed to the possible suspension
of liquidation.
Conclusion: Based on (1) an evaluation of apparent domestic
consumption during the pre- and post-petition period, as calculated by
petitioner, (2) Thai Merry's share of domestic consumption during the
pre- and post-petition periods, (3) the shipment data provided by
respondent as compared to previous periods, and (4) consideration of
the circumstances surrounding the large increase in shipment in May
1994, we preliminarily determine that critical circumstances do not
exist. (A more detailed analysis of the critical circumstances
allegation is contained in the February 27, 1995 memorandum to Susan H.
Kuhbach, Director, Office of Countervailing Investigations from David
R. Boyland, Case Analyst.)
ITC Notification: In accordance with section 733(f) of the Act, we
have notified the ITC of our determination.
Public Comment: Since this determination is being made subsequent
to the due dates for public comment as published in our notice of
preliminary determination of sales at less than fair value, we will
accept written comments [[Page 13958]] limited to this preliminary
determination on critical circumstances if they are submitted to the
Assistant Secretary for Import Administration no later than March 6,
1995
This determination is published pursuant to section 733(f) of the
Act.
Dated: March 3, 1995.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 95-6402 Filed 3-14-95; 8:45 am]
BILLING CODE 3510-DS-P
