Notice of Preliminary Negative Determination of Critical Circumstances: Disposable Pocket Lighters From Thailand

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