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 |
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Ronald K. Lorentzen
Department of Commerce
2 February 2017
[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)
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ATC Tires Private Ltd....................... 3.67 0.00
All-Others.................................. 3.67 0.00
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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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