Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Notices 28237 

1Resco Products, Inc. 

2See, 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, 59119 

(November. 17, 2009) (‘‘OCTG Prelim’’) 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 

(April19, 2010). 

Dated: May 14, 2010. 

P. Michael Payne, 

Chief, Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2010–12124 Filed 5–19–10; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

International Trade Administration 

[A–570–954] 

Certain Magnesia Carbon Bricks From 

the People’s Republic of China: Notice 

of Preliminary Affirmative 

Determination of Critical 

Circumstances 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

DATES: Effective Date: May 20, 2010. 

FOR FURTHER INFORMATION CONTACT: Paul 

Walker at (202) 482–0413, AD/CVD 

Operations, Office 9, Import 

Administration, International Trade 

Administration, U.S. Department of 

Commerce, 14th Street and Constitution 

Avenue, NW., Washington, DC 20230. 

Background 

On March 12, 2010, the Department of 

Commerce (‘‘Department’’) published in 

the Federal Register its preliminary 

determination in the antidumping duty 

investigation of certain magnesia carbon 

bricks (‘‘bricks’’) from the People’s 

Republic of China (‘‘PRC’’). See Certain 

Magnesia Carbon Bricks From the 

People’s Republic of China: Preliminary 

Determination of Sales at Less Than 

Fair Value, 75 FR 11847 (March 12, 

2010) (‘‘Preliminary Determination’’). On 

April 21, 2010, the Department 

published in the Federal Register its 

amended preliminary determination in 

the antidumping duty investigation of 

bricks from the PRC. See Certain 

Magnesia Carbon Bricks From the 

People’s Republic of China: Amended 

Preliminary Determination of Sales at 

Less Than Fair Value, 75 FR 20813 

(April 21, 2010). 

On April 15, 2010, Petitioner 1 filed a 

timely critical circumstances allegation, 

pursuant to 19 CFR 351.206, alleging 

that critical circumstances exist with 

respect to imports of the merchandise 

under consideration. On April 23, 2010, 

RHI Refractories Liaoning Co., Ltd 

(‘‘RHI’’), a mandatory respondent in this 

investigation, submitted comments on 

Petitioner’s critical circumstances 

allegation. On April 27, 2010, RHI 

submitted information on its exports 

from January 2009 through February 

2010, as requested by the Department. 

In accordance with 19 CFR 

351.206(c)(1), when a critical 

circumstances allegation is filed 30 days 

or more before the scheduled date of the 

final determination (as was done in this 

case), the Department will issue a 

preliminary finding whether there is a 

reasonable basis to believe or suspect 

that critical circumstances exist. 

Because the critical circumstances 

allegation in this case was submitted 

after the Preliminary Determination, the 

Department will normally issue its 

preliminary findings of critical 

circumstances not later than 30 days 

after the allegation was filed. See 19 

CFR 351.206(c)(2)(ii). 

Legal Framework 

Section 733(e)(1) of the Tariff Act of 

1930, as amended (‘‘Act’’), provides that 

the Department, 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,’’ the Department 

normally will 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.’’ 19 CFR 351.206(i) 

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 the 

Department ‘‘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,’’ then the 

Department may consider a period of 

not less than three months from that 

earlier time. See 19 CFR 351.206(i). 

Allegation 

In its allegation, Petitioner contends 

that, based on the dumping margins 

assigned by the Department in the 

Preliminary Determination, importers 

knew or should have known that the 

merchandise under consideration was 

being sold at less than fair value 

(‘‘LTFV’’). 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. In its 

allegation, Petitioner included import 

statistics for the four different 

harmonized tariff subheadings provided 

in the scope of this investigation for the 

period February 2009 through December 

2009. See letter from Petitioner, 

regarding ‘‘Allegation of Critical 

Circumstances,’’ dated April 15, 2010 

(‘‘Petitioner’s Allegation’’), at 3–4. 

Analysis 

In determining whether the above 

statutory criteria have been satisfied in 

this case, we examined: (1) The 

evidence presented in Petitioner’s April 

15, 2010, allegation; (2) evidence 

obtained since the initiation of this 

investigation; and (3) the ITC’s 

preliminary injury determination. 

History of Dumping 

In determining whether a history of 

dumping and material injury exists, the 

Department generally has considered 

current or previous antidumping duty 

orders on subject merchandise from the 

country in question in the United States 

and current orders in any other 

country.2 In its April 15, 2010, 

submission, Petitioner made no 

statement concerning a history of 

dumping bricks from the PRC. However, 

the ITC notes in its preliminary 

determination that there are 

antidumping orders in the European 

Union and Turkey on bricks from the 

PRC, dated October 6, 2005 and 


wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1
28238 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Notices 

3See Certain Magnesia Carbon Bricks From China 

and Mexico, Investigation Nos. 701–TA–468 and 

731–TA–1166–1167 (Preliminary), USITC 

Publication 4100 (September 2009), at VII–5. 

4See, e.g., Affirmative Preliminary Determination 

of Critical Circumstances: Magnesium Metal From 

the People’s Republic of China, 70 FR 5606, 5607 

(February 3, 2005) (‘‘Magnesium Metal CC Prelim’’), 

unchanged in Final Determination of Sales at Less 

Than Fair Value and Affirmative Critical 

Circumstances: Magnesium Metal From the People’s 

Republic of China, 70 FR 9037 (February 24, 2005). 

5See Magnesium Metal CC Prelim, 70 FR at 5607. 

6See Investigation Nos. 701–TA–468 and 731– 

TA–116667 (Preliminary) Certain Magnesia Carbon 

Bricks From China, 74 FR 49889 (September 29, 

2009). 

7See, e.g., Final Determination of Sales at Less 

Than Fair Value and Partial Affirmative 

Determination of Critical Circumstances: Certain 

Polyester Staple Fiber From the People’s Republic 

of China, 72 FR 19690, 19692 (April 19, 2007). 

8See Memo to The File, from Dana Griffies, 

Import Policy Analyst, through Scot T. Fullerton, 

Program Manager, regarding ‘‘Investigation of 

Magnesia Carbon Bricks From the People’s Republic 

of China: Critical Circumstances Analysis,’’ dated 

concurrently with this Memo (‘‘Critical 

Circumstances Memo’’). 

9See Memorandum to James C. Doyle, Director, 

Office IX, from Paul Walker, Senior Case Analyst, 

through Scot Fullerton, Program Manager, Office IX; 

regarding ‘‘Antidumping Duty Investigation of 

Certain Magnesia Carbon Bricks From the People’s 

Republic of China,’’ dated October 6, 2009. 

September 1, 2007, respectively.3 There 

is no evidence on the record that these 

orders are not still in place. Therefore, 

the Department finds that there is a 

history of injurious dumping of the 

merchandise under consideration from 

the PRC pursuant to section 

733(e)(1)(A)(i) of the Act. 

Imputed Knowledge of Injurious 

Dumping 

In determining whether an importer 

knew or should have known that the 

exporter was selling subject 

merchandise at LTFV and that there was 

likely to be material injury by reason of 

such sales, the Department must rely on 

the facts before it at the time the 

determination is made. The Department 

generally bases its decision with respect 

to knowledge on the margins calculated 

in the preliminary determination and 

the ITC’s preliminary injury 

determination. 

The Department normally considers 

margins of 25 percent or more for export 

price sales and 15 percent or more for 

constructed export price sales sufficient 

to impute importer knowledge of sales 

at LTFV.4 The Department preliminarily 

determined margins of 130.96 percent 

for the non-selected separate rate 

applicants, 236.00 percent for the PRCwide entity, 129.17 percent for RHI, and 

132.74 percent for Liaoning Mayerton 

Refractories Co., Ltd. and Dalian 

Mayerton Refractories Co., Ltd. 

(collectively, ‘‘Mayerton’’). Therefore, as 

we preliminarily determined margins 

greater than 25 percent for all producers 

and exporters, we preliminarily find, 

with respect to all producers and 

exporters, that there is a reasonable 

basis to believe or suspect that 

importers knew, or should have known, 

that 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, the 

Department normally will look to the 

preliminary injury determination of the 

ITC. If the ITC finds a reasonable 

indication of present material injury to 

the relevant U.S. industry, the 

Department will determine that a 

reasonable basis exists to impute 

importer knowledge that material injury 

is likely by reason of such imports.5

Here, the ITC found that that ‘‘there is 

a reasonable indication that an industry 

in the United States is materially 

injured, or threatened with material 

injury by reason of imports from China 

and Mexico of certain magnesia carbon 

bricks. * * * ’’ 6 Therefore, the 

Department preliminarily finds that 

there is a reasonable basis to believe or 

suspect that importers knew or should 

have known that there was likely to be 

material injury by reason of sales at 

LTFV of subject merchandise from the 

PRC. 

Massive Imports Over a Relatively Short 

Period 

Pursuant to 19 CFR 351.206(h)(2), the 

Department will not consider imports to 

be massive unless imports in the 

comparison period have increased by at 

least 15 percent over imports in the base 

period. The Department normally 

considers a ‘‘relatively short period’’ as 

the period beginning on the date the 

proceeding begins and ending at least 

three months later. See 19 CFR 

351.206(i). For this reason, the 

Department 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’’). 

Id. 

In its April 15, 2010, allegation, 

Petitioner maintained that importers, 

exporters, or foreign producers gained 

knowledge that this proceeding was 

possible when they filed the Petition on 

July 29, 2009. See Petitioner’s 

Allegation at 4. Petitioner also included 

in its allegation U.S. import data, which 

used a five-month base period (March 

2009 through July 2009) and a fivemonth comparison period (August 2009 

through December 2009) in showing 

whether imports were massive. The 

Department, however, has used a sevenmonth base and comparison period in 

its analysis, the maximum amount of 

data which could be collected.7

Based on the date the Petition was 

filed, i.e., July 29, 2009, the Department 

agrees with Petitioner that at this time 

importers, exporters, or producers knew 

or should have known an antidumping 

duty investigation was likely, and 

therefore July falls within the base 

period. 

A. RHI 

The Department requested monthly 

shipment information from RHI, a 

mandatory respondent in this 

investigation. We determine that, based 

on a seven-month comparison period, 

RHI’s imports were massive. 

Specifically, RHI’s import data show an 

increase of greater than 15 percent of 

brick imports from the PRC from the 

base to the comparison period.8 Thus, 

pursuant to 19 CFR 351.206(h), we 

determine that this increase, being 

greater than 15 percent, shows that 

imports in the comparison period were 

massive for RHI. 

B. Mayerton 

In this investigation, the Department 

selected Mayerton and RHI as 

mandatory respondents.9 After the 

Preliminary Determination, on April 1, 

2010, Mayerton stated that it would no 

longer participate in the instant 

investigation. See letter from Mayerton, 

regarding ‘‘Withdrawal by Mayerton of 

Further Participation in the 

Investigation,’’ dated April 1, 2010. 

Because Mayerton is no longer 

participating in this investigation, we 

were unable to obtain shipment data 

from Mayerton for purposes of our 

critical circumstances analysis, and 

thus, there is no verifiable information 

on the record with respect to its export 

volumes. 

Section 776(a)(2) of the Act provides 

that, if an interested party or any other 

person (A) withholds information that 

has been requested by the administering 

authority or the Commission under this 

title, (B) fails to provide such 

information by the deadlines for 

submission of the information or in the 

form and manner requested, subject to 

subsections (c)(1) and (e) of section 782 

of the Act, (C) significantly impedes a 

proceeding under the Act, or (D) 

provides such information but the 

information cannot be verified as 

provided in section 782(i) of the Act, the 


wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1
Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Notices 28239 

10See, e.g., OCTG, 74 FR at 59121. 11See OCTG, 74 FR at 59121. 

Department shall, subject to section 

782(d) of the Act, use the facts 

otherwise available in reaching the 

applicable determination under this 

title. Furthermore, section 776(b) of the 

Act provides that, if a party has failed 

to act to the best of its ability, the 

Department may apply an adverse 

inference. 

Thus, for the purposes of critical 

circumstances, we have applied adverse 

facts available (‘‘AFA’’) to Mayerton in 

accordance with sections 776(a) and (b) 

of the Act. Accordingly, as AFA we 

preliminarily find that there were 

massive imports of merchandise from 

Mayerton. 

C. Separate Rate Applicants 

As noted above, we requested seven 

months of shipment information from 

RHI, a mandatory respondent in this 

investigation, and determined that RHI’s 

imports were massive. Because it has 

been the Department’s practice to 

conduct its massive imports analysis of 

separate rate companies based on the 

experience of investigated companies,10

we did not request monthly shipment 

information from the separate rate 

applicants. The Department has relied 

upon RHI’s import data in determining 

whether there have been massive 

imports for the separate rate companies. 

Accordingly, based on RHI’s import 

data, we find that imports in the postpetition period were massive for those 

companies because RHI’s import 

volume is greater than 15 percent when 

comparing the base period to the 

comparison period. See Critical 

Circumstances Memo. Thus, pursuant to 

19 CFR 351.206(h), we determine that 

this increase, being greater than 15 

percent, shows that imports in the 

comparison period were massive for the 

separate rate companies. 

D. PRC-Wide Entity 

Because the PRC-wide entity did not 

cooperate with the Department by not 

responding to the Department’s 

antidumping questionnaire, we were 

unable to obtain shipment data from the 

PRC-wide entity for purposes of our 

critical circumstances analysis, and thus 

there is no verifiable information on the 

record with respect to its export 

volumes. 

Section 776(a)(2) of the Act provides 

that, if an interested party or any other 

person (A) withholds information that 

has been requested by the administering 

authority or the Commission under this 

title, (B) fails to provide such 

information by the deadlines for 

submission of the information or in the 

form and manner requested, subject to 

subsections (c)(1) and (e) of section 782 

of the Act, (C) significantly impedes a 

proceeding under the Act, or (D) 

provides such information but the 

information cannot be verified as 

provided in section 782(i) of the Act, the 

Department shall, subject to section 

782(d) of the Act, use the facts 

otherwise available in reaching the 

applicable determination under this 

title. 

Furthermore, section 776(b) of the Act 

provides that, if a party has failed to act 

to the best of its ability, the Department 

may apply an adverse inference. The 

PRC-wide entity did not respond to the 

Department’s request for information. 

Thus, we are using facts available, in 

accordance with section 776(a) of the 

Act, and, pursuant to section 776(b) of 

the Act, we also find that AFA is 

warranted because the PRC-wide entity 

has not acted to the best of its ability in 

not responding to the request for 

information. Accordingly, as AFA we 

preliminarily find that there were 

massive imports of merchandise from 

the PRC-wide entity.11

Critical Circumstances 

Record evidence indicates that 

importers of the merchandise under 

consideration knew, or should have 

known, that exporters were selling the 

merchandise at LTFV, and that there 

was likely to be material injury by 

reason of such sales. In addition, record 

evidence indicates that RHI, Mayerton, 

the separate rate applicants and the 

PRC-wide entity had massive imports 

during a relatively short period. 

Therefore, in accordance with section 

733(e)(1) of the Act, we preliminarily 

find that there is reason to believe or 

suspect that critical circumstances exist 

for imports of subject merchandise from 

RHI, Mayerton, the separate rate 

applicants and the PRC-wide entity in 

this antidumping duty investigation. 

ITC Notification 

In accordance with section 733(f) of 

the Act, we have notified the ITC of our 

preliminary determination. 

Public Comment 

As noted in the Preliminary 

Determination, case briefs or other 

written comments may be submitted to 

the Assistant Secretary for Import 

Administration no later than seven 

business days after the date on which 

the final verification report is issued in 

this proceeding. Rebuttal briefs limited 

to issues raised in case briefs must be 

received no later than five business days 

after the deadline date for case briefs. 

See 19 CFR 351.309(c)(i) and (d). A list 

of authorities used and an executive 

summary of issues should accompany 

any briefs submitted to the Department. 

This summary should be limited to five 

pages total, including footnotes. 

Suspension of Liquidation 

With respect to the RHI, Mayerton, 

the separate rate applicants and the 

PRC-wide entity, in accordance with 

section 733(e)(2)(A) of the Act, we will 

direct CBP to suspend liquidation of all 

unliquidated entries of bricks from the 

PRC that were entered, or withdrawn 

from warehouse, for consumption on or 

after December 14, 2010, which is 90 

days prior to March 12, 2010, the date 

of publication in the Federal Register of 

our Preliminary Determination in this 

investigation. 

This determination is published 

pursuant to section 733(f) of the Act and 

19 CFR 351.206(c)(2)(ii). 

Dated: May 13, 2010. 

Ronald K. Lorentzen, 

Deputy Assistant Secretary for Import 

Administration. 

[FR Doc. 2010–12144 Filed 5–19–10; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XW51 

Marine Mammals; File No. 15537 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; receipt of application. 

SUMMARY: Notice is hereby given that 

Institute for Marine Mammal Studies 

(IMMS), P.O. Box 207, Gulfport, MS 

39502 (Dr. Moby Solangi, Responsible 

Party), has applied in due form for a 

permit to obtain stranded, releasable 

California sea lions (Zalophus 

californianus) from the National Marine 

Mammal Stranding Response Program 

for the purposes of public display. 

DATES: Written or telefaxed comments 

must be received on or before June 21, 

2010. 

ADDRESSES: The application and related 

documents are available for review 

upon written request or by appointment 

in the following offices: 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

NMFS, 1315 East-West Highway, Room 

13705, Silver Spring, MD 20910; phone 

(301) 713–2289; fax (301) 713–0376; and 


wwoods2 on DSK1DXX6B1PROD with NOTICES_PART 1