2024-11598. Aluminum Extrusions From the United Arab Emirates: Preliminary Affirmative Determination of Critical Circumstances, in Part, in the Less-Than-Fair Value Investigation

AGENCY:

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

SUMMARY:

The U.S. Department of Commerce (Commerce) preliminarily determines that critical circumstances exist regarding certain imports of aluminum extrusions from the United Arab Emirates (UAE).

DATES:

Applicable May 28, 2024.

FOR FURTHER INFORMATION CONTACT:

Jinny Ahn or John K. Drury at [phone] and [phone], respectively, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

On October 24, 2023, Commerce initiated a less than fair value (LTFV) investigation concerning aluminum extrusions from the UAE.^[1] On April 19, 2024, the U.S. Aluminum Extruders Coalition and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (collectively, the petitioners) filed a timely critical circumstances allegation, pursuant to section 703(e)(1) of the Tariff Act of 1930, as amended, (the Act) and 19 CFR 351.206, alleging that critical circumstances exist with respect to aluminum extrusions from the UAE.^[2] Commerce published its preliminary LTFV determination on May 7, 2024.^[3]

In accordance with 19 CFR 351.206(c)(1) and (c)(2)(ii), when a critical circumstances allegation is filed 30 days or more before the scheduled date of the final determination, but later than 20 days before the scheduled date of the preliminary determination, Commerce will make a preliminary finding whether there is a reasonable basis to believe or suspect that critical circumstances exist and will issue a preliminary critical circumstances determination within 30 days after the allegation is filed.

Legal Framework

Section 733(e)(1) of the Act provides that Commerce, 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,” Commerce will normally 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}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.” Section 351.206(i) of Commerce's regulations 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 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.

Critical Circumstances Allegation

In their allegation, the petitioners state that based on the dumping margins calculated in the petition ( i.e., 42.29 percent), importers knew, or should have known, that imports of aluminum extrusions from the UAE were being sold at LTFV because this margin exceeds the 25 and 15 percent thresholds established for export price (EP).^[4] Additionally, the petitioners contend that the U.S. International Trade Commission's (ITC's) affirmative determination that there is a reasonable indication that an industry in the United States is materially injured by reason of imports of aluminum extrusions from the UAE is sufficient to impute knowledge of the likelihood of material injury.^[5]

Finally, as part of their allegation and pursuant to 19 CFR 351.206(h)(2), the petitioners provided monthly import data for the Harmonized Tariff Schedule of the United States (HTSUS) subheadings included in the scope of the investigation for the period between May 2023 and February 2024 as evidence of massive imports of aluminum extrusions from the UAE during a relatively short period.^[6]

Analysis

Generally, when determining whether critical circumstances exist pursuant to the statutory criteria, Commerce examines record evidence, including: (1) the evidence presented in the petitioners' allegation; (2) import statistics released by the ITC; and (3) shipment information submitted to Commerce by the respondents selected for individual examination.^[7] Consistent with Commerce's practice, here we examined record information obtained since the initiation of this investigation, as well as the ITC's preliminary injury determination.^[8]

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 there is a history of dumping pursuant to section 733(e)(1)(A)(i) of the Act, Commerce generally considers current or previous antidumping duty (AD) orders on subject merchandise from the country in question in the United States and current orders in any other country with regard to imports of subject merchandise.^[9] There are no current or previous AD orders on aluminum extrusions from the UAE in the United States, and Commerce is not aware of the existence of any active AD orders on aluminum extrusions from the UAE in other countries. Therefore, Commerce preliminarily finds that there is no history of injurious dumping of aluminum extrusions from the UAE; thus, this criterion is not met.

Section 733(e)(1)(A)(ii): The Importer Knew or Should Have Known That the Exporter Was Selling at Less Than Fair Value and That There Was Likely To Be Material Injury

In determining whether importers knew or should have known that exporters were selling subject merchandise at LTFV and that there was likely to be material injury by reason of such sales, Commerce must rely on the facts before it at the time the determination is made. Commerce generally bases its decision with respect to knowledge on the margins calculated in the preliminary determination and the ITC's preliminary injury determination.^[10]

Commerce normally considers margins of 25 percent or more for EP sales and 15 percent or more for constructed export price sales sufficient to impute importer knowledge of sales at LTFV.^[11] In this investigation, we preliminarily calculated a weighted-average dumping margin of 9.13 percent for Gulf Extrusions LLC/Automotive Precision Technology (APT)-Sole Proprietorship LLC (Gulfex),^[12] 9.17 percent for OSE Industries LLC (OSE), and 9.15 percent for all other UAE exporters/producers.^[13] Additionally, we preliminarily assigned a dumping margin of 42.29 percent to various companies based on total adverse facts available (AFA).^[14]

Based on these dumping margins, we preliminarily find no reasonable basis to believe or suspect that importers of subject merchandise from Gulfex, OSE, or producers/importers of subject merchandise from the UAE other than Gulfex, OSE, Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum knew or should have known that the exporters were selling subject merchandise at LTFV. Because this criterion is not met for these companies, we preliminarily determine that critical circumstances do not exist for these companies.

However, given the preliminary dumping margins for Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum exceed the threshold sufficient to impute knowledge of dumping, we preliminarily find that there is a reasonable basis to believe or suspect that these producers/exporters of subject merchandise knew, or should have known, that the exporters were selling subject merchandise at LTFV.

In determining whether an importer knew or should have known that there was likely to be material injury caused by reason of such imports, Commerce 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, Commerce 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 preliminarily found that there is “reasonable indication” of material injury to the domestic industry because of the imported subject merchandise from the UAE. Thus, Commerce determines that importers knew, or should have known, that there was likely to be material injury by reason of sales of aluminum extrusions by Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum.^[17]

Section 733(e)(1)(B): Whether There Have Been Massive Imports of the Subject Merchandise Over a Relatively Short Period

In determining whether there have been “massive imports” 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”). The 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.^[18] Pursuant to 19 CFR 351.206(h)(2), imports must increase by at least 15 percent during the “relatively short period” to be considered “massive.”

As discussed above, we preliminarily find that for Gulfex, OSE, and producers/importers of subject merchandise from the UAE other than Gulfex, OSE, Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum, pursuant to section 733(e)(1) of the Act there is not 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; thus, whether there was a massive increase in imports from these companies between the base and comparison periods is moot.

However, as explained in the Preliminary Determination, we preliminarily applied total AFA to Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum because they failed to cooperate in this proceeding.^[19] Specifically, we determined that the use of facts available is warranted, pursuant to sections 776(a)(1) and (a)(2)(A)-(C) of the Act, because Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum did not respond to our quantity and value (Q&V) questionnaire, despite confirmation that the questionnaire was successfully delivered to them.^[20] Further, we determined these companies withheld information requested by Commerce, failed to provide information in a timely manner, and significantly impeded this proceeding by not submitting the requested Q&V information.^[21] We also determined that an adverse inference is warranted pursuant to section 776(b) of the Act because these companies were not cooperative.^[22] Thus, for Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum, we preliminarily determine, as AFA and in accordance with section 776(b) of the Act, there was a massive surge in imports between the base and comparison periods.

Preliminary Affirmative Determination of Critical Circumstances, in Part

Based on the criteria and findings discussed above, we preliminarily determine that critical circumstances exist with respect to imports of aluminum extrusions from the UAE from Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum. Further, we preliminarily determine that critical circumstances do not exist with respect to imports of aluminum extrusions from the UAE produced or exported by Gulfex, OSE, and producers/importers of subject merchandise from the UAE other than Gulfex, OSE, Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, or White Aluminum.

Final Critical Circumstances Determination

We will make a final determination concerning critical circumstances in the final LTFV determination, which is currently scheduled for September 19, 2024.

Public Comment

In the Preliminary Determination, Commerce stated that case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance and set a deadline for case briefs or other written comments on non-scope issues as no later than seven days after the date on which the final verification report is issued.^[23] Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline for case briefs.^[24] All comments regarding this preliminary critical circumstances determination are subject to the same request for public executive summaries in case and rebuttal briefs, as noted in the Preliminary Determination.^[25]

Suspension of Liquidation

In accordance with section 703(e)(2)(A) of the Act, for Al Buraq, Al Hamad, Al Jaber, APC, Arabian Extrusions, Emirates Extrusion, Taweelah, and White Aluminum, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of any unliquidated entries of subject merchandise from the UAE entered, or withdrawn from warehouse for consumption, on or after February 7, 2024, which is 90 days prior to the date of publication of the Preliminary Determination in the Federal Register . For such entries, CBP shall require a cash deposit equal to the estimated weighted-average dumping margin established in the Preliminary Determination. This suspension of liquidation will remain in effect until further notice.

U.S. International Trade Commission (ITC) Notification

In accordance with section 733(f) of the Act, we will notify the ITC of this preliminary determination of critical circumstances.

This determination is issued and published pursuant to section 733(f) and 777(i) of the Act and 19 CFR 351.206(c)(2)(ii).

Dated: May 20, 2024.

Ryan Majerus,

Deputy Assistant Secretary for Policy and Negotiations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance.

Footnotes

1.   See Aluminum Extrusions from the People's Republic of China, Colombia, the Dominican Republic, Ecuador, India, Indonesia, Italy, the Republic of Korea, Malaysia, Mexico, Taiwan, Thailand, the Republic of Turkey, the United Arab Emirates, and the Socialist Republic of Vietnam: Initiation of Less-Than-Fair-Value Investigations,88 FR 74421 (October 31, 2023) ( Initiation Notice).

2.   See Petitioners' Letter, “Critical Circumstances Allegation,” dated April 19, 2024 (Critical Circumstances Allegation).

3.   See Aluminum Extrusions from the United Arab Emirates: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures,89 FR 38090 (May 7, 2024) ( Preliminary Determination) and accompanying Preliminary Decision Memorandum (PDM).

4.   See Initiation Notice, 88 FR at 77426.

5.   See Aluminum Extrusions from China, Colombia, Dominican Republic, Ecuador, India, Indonesia, Italy, Malaysia, Mexico, South Korea, Taiwan, Thailand, Turkey, United Arab Emirates, and Vietnam,88 FR 82913 (November 27, 2023) ( ITC Preliminary Determination).

6.   See Critical Circumstances Allegation at 7.

7.   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); see also 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).

8.   See, e.g., Critical Circumstances Allegation; Preliminary Determination; and ITC Preliminary Determination.

9.   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, 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).

10.   See, e.g., Granular Polytetrafluoroethylene Resin from India: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Preliminary Affirmative Determination of Critical Circumstances, Postponement of Final Determination, and Extension of Provisional Measures,86 FR 49299 (September 2, 2021), and accompanying PDM at 15, unchanged in Granular Polytetrafluoroethylene Resin From India: Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical Circumstances, 87 FR 3772 (January 25, 2022). See also Oil Country Tubular Goods from Mexico: Preliminary Affirmative Determinations of Sales at Less Than Fair Value and Critical Circumstances, Postponement of Final Determination, and Extension of Provisional Measures,87 FR 28808 (May 11, 2022) and accompanying PDM at 11, unchanged in Oil Country Tubular Goods from Mexico: Final Affirmative Determinations of Sales at Less Than Fair Value and Critical Circumstances,87 FR 59041 (September 29, 2022).

11.   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) ( Steel Wire Rod Preliminary), unchanged in Notice of Final Determination of Sales at Less Than Fair Value: Carbon and Certain Alloy Steel Wire Rod from Moldova,67 FR 55790 (August 30, 2002) ( Steel Wire Rod Final).

12.  As explained in the PDM, based on the record information, Commerce preliminarily determined that Gulf Extrusions LLC and a non-selected respondent, Automotive Precision Technology LLC, are affiliated within the meaning of section 771(33)(F) of the Act and should be treated as a single entity pursuant to 19 CFR 351.401(f) for this preliminary determination. See PDM; see also Memorandum, “Preliminary Collapsing Memorandum for Gulf Extrusions LLC and Automotive Precision Technology—Sole Proprietorship LLC,” dated May 1, 2024.

13.   See Preliminary Determination, 89 FR at 38091.

14.   Id. The companies to which we assigned the rate of 42.29 percent are Al Buraq Trading & Enterprises, Co. (Al Buraq), Al Hamad Industrial Co., LLC (Al Hamad), Al Jaber Aluminium Extrusions, LLC (Al Jaber), Aluminum Products Co. (APC), Arabian Extrusions Factory (Arabian Extrusions), Emirates Extrusion Factory, LLC (Emirates Extrusion), Taweelah Aluminium Extrusion Co. (Taweelah), and White Aluminum Extrusions, LLC (White Aluminum). See also Preliminary Determination PDM at 6.

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).

16.   See, e.g., Steel Wire Rod Preliminary, 67 FR at 6225, unchanged in Steel Wire Rod Final.

17.   See ITC Preliminary Determination.

18.   See19 CFR 351.206(i).

19.   See Preliminary Determination PDM at 6.

20.   See Preliminary Determination PDM at 6-7; see also Memorandum, “Issuance of the Quantity and Value Questionnaire,” dated November 6, 2023.

21.   See Preliminary Determination PDM at 7.

22.   Id. at 6-7.

23.   See Preliminary Determination, 89 FR at 38091-92.

24.   See19 CFR 351.309(d)(1).

25.   See Preliminary Determination, 89 FR at 38092.