Commission Regulation (EC) No 193/2009 of 11 March 2009 imposing a provisional anti-dumping duty on imports of biodiesel originating in the United States of America
Date: 2009-03-11
Institutions: European Commission
Subjects: United States, anti-dumping measure, biofuel, dumping, import, motor fuel

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COMMISSION REGULATION (EC) No 193/2009

of 11 March 2009

imposing a provisional anti-dumping duty on imports of biodiesel originating in the United States
of America

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(4)

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped imports
from countries not members of the European Community (1)
(the ‘basic Regulation’), and in particular Article 7 thereof,

After consulting the Advisory Committee,

Whereas:

1. PROCEDURE

(5)

(6)

(1)

(2)

(3)

the European Union (2),

On 13 June 2008, the Commission announced, by a
initiation’) published in the Official
notice (‘notice of
the initiation of an
Journal of
‘the
anti-dumping proceeding (‘AD investigation’ or
investigation’) with
the
into
regard
Community of biodiesel originating in the United
States of America (‘USA’ or ‘country concerned’).

imports

to

On the same day, the Commission announced by notice
published in the Official Journal of the European Union (3),
the initiation of an anti-subsidy proceeding with regard
to imports into the Community of biodiesel originating
in the USA and commenced a separate investigation (‘AS
proceeding’).

The AD investigation was initiated following a complaint
lodged on 29 April 2008 by the European Biodiesel
Board (‘the complainant’) on behalf of producers rep­
resenting a major proportion,
in this case more than
25 % of the total Community production of biodiesel.
evidence of
The
dumping of
injury
resulting therefrom, which was considered sufficient to
justify the initiation of the AD investigation.

the said product and of material

contained prima

complaint

facie

(1) OJ L 56, 6.3.1996, p. 1.
(2) OJ C 147, 13.6.2008, p. 5.
(3) OJ C 147, 13.6.2008, p. 10.

the authorities of

complainant Community producers

The Commission officially advised exporting producers in
importers, suppliers, users and associations
the USA,
the USA,
known to be concerned,
the
and other
Community producers known to be concerned of the
initiation of
Interested parties were
given the opportunity to make their views known in
writing and to request a hearing within the time limit
set in the notice of initiation. All interested parties who
so requested and showed that
there were particular
reasons why they should be heard were granted a
hearing.

the proceeding.

1.1. Sampling for exporting producers in the USA

the apparent

large number of exporting
In view of
producers in the USA, sampling was provided for in
the notice of
the determination of
dumping, in accordance with Article 17(1) of the basic
Regulation.

initiation for

if so,

In order to enable the Commission to decide whether
to select a
sampling would be necessary and,
sample, exporting producers in the USA were requested
to make themselves known within 15 days from the date
of the initiation of the investigation and to provide basic
information on their export and domestic sales, their
to the production,
precise
blending and trading of biodiesel and the names and
activities of all their related companies involved in the
production, blending
the product
concerned during the investigation period 1 April 2007
to 31 March 2008 (‘IP’), as also defined in recital (15)
below.

activities with regard

and trading of

(7)

The authorities of the USA and the National Biodiesel
Board (US producers’ association) were also consulted
with regard to the selection of a representative sample.

1.1.1. Pre-selection of cooperating exporting producers in the

USA

(8)

In total 54 exporting producers or groups of exporting
producers came forward and provided the requested
information within the given deadline set in the notice
of initiation. Of this total, 29 companies reported exports
of biodiesel
to the Community during the IP and
expressed a wish to participate in the sample, whereas
25 companies, two of which requested to be removed
to the
from the proceeding,
IP.
Community
exporting
the
52
producers or groups of
exporting producers were
considered to be cooperating in the present investigation.

reported no exports
Thus,

during

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(9)

(10)

(11)

Exporting producers which did not make themselves
known within the aforementioned deadline or did not
provide the requested information in due time, were
considered as non-cooperating with the investigation.
The comparison between US export statistics and the
volume of exports to the Community of the product
concerned reported for
the IP by the cooperating
companies mentioned above suggests that the cooper­
ation of US
as
mentioned in recital (57) below.

producers was

exporting

high

1.1.2. Selection of

the

sample of

cooperating exporting

producers in the USA

In accordance with Article 17(1) of the basic Regulation,
a sample was selected based on the largest representative
volume of exports of
the product concerned to the
Community which could reasonably be investigated
within the time available. On the basis of the information
received from the exporting producers, the Commission
selected a sample of six exporting producers or groups of
exporting producers having the largest volume of exports
to the Community. Based on the sampling information,
the selected companies or groups accounted for 73 % of
the total volume of exports to the Community of the
product concerned in the IP reported by the cooperating
exporting producers referred to above in recital (8). It
was therefore considered that such a sample would
allow to limiting the investigation to a reasonable
number of exporting producers which could be inves­
tigated within the time available while ensuring a high
exporting producers
level of
concerned, as well as the US producer's association and
the US authorities, were consulted and agreed on the
selection of the sample.

representativeness. All

1.2. Sampling of Community producers

Regarding the Community producers, in accordance with
Article 17(1) of
the basic Regulation, a sample was
selected after consultation of the complainant on the
basis of the largest representative volume of production
and sales within the Community as mentioned in recital
(63) below. This selection also allowed for a certain
geographical spread of producers in the Community.
As a result, eleven Community producers were selected
in the sample. The Commission sent questionnaires to
the eleven companies selected. However, one producer
originally considered for the sample had to be excluded
failed to provide a meaningful questionnaire
as
response. Hence,
ten complete replies were received
from the other companies within the set time limits.
These
sample were
considered to be representative of the overall producers
in the Community.

selected in the

ten producers

it

1.3. Parties concerned by the proceeding

(12)

The Commission sent questionnaires to all parties known
to be concerned and to all the other companies that
made themselves known within the deadlines set out in
the notice of initiation. Questionnaires were thus sent to
the six sampled exporting producers or groups of
producers in the USA, to the 11 sampled Community
producers, to 18 users as well as to 90 raw material
suppliers.

(13) Questionnaire replies were received from the six sampled
exporting producers or producer groups in the USA, ten
sampled Community producers, one user and six raw
material suppliers.

(14)

The Commission sought and verified all the information
deemed necessary for a provisional determination of
dumping, resulting injury and Community interest. Veri­
fication visits were carried out at the premises of the
following companies:

(a) P r o d u c e r s l o c a t e d i n t h e C o m m u n i t y

— Biopetrol Industries AG, Schwarzheide, Germany

— Diester Group

— Diester Industries SAS, Paris, France

— Mannheim Bio Fuel GmbH, Mannheim,

Germany

— Natural Energy West GmbH, Neuss, Germany

— Novaol Austria GmbH, Bruck an der Leitha,

Austria

— Novaol Srl, Milan, Italy

— Ecomotion group

— Ecomotion GmbH, Sternberg, Germany

— Daka Biodiesel a.m.b.a, Løsning, Denmark

— GATE Global Alternative Energy Germany GmbH,

Wittenberg and Halle, Germany

— Neochim SA, Feluy, Belgium

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(b) E x p o r t i n g p r o d u c e r s i n t h e U S A

— Peter Cremer North America LP, Cincinnati, Ohio

— Cargill Inc., Wayzata, Minnesota

— Imperium Renewables Inc., Seattle, Washington

— Archer Daniels Midland Company, Decatur,

Illinois

— World Energy Alternatives LLC, Boston, Massa­

chusetts

— Green Earth Fuels of Houston LLC, Texas

treatment, of non-fossil origin (commonly known as
‘biodiesel’), whether in pure form or in a blend, mainly
but not exclusively used as renewable fuel originating in
the USA (‘the product concerned’), normally declared
ex 3824 90 97,
within
ex 2710 19 41,
ex 1518 00 91,
ex 1518 00 99.

ex 1516 20 98,

3824 90 91,

codes

CN

(17) According to the US Internal Revenue Code (4)

(US.
CODE), Title 26, $40A, point (d), the term biodiesel is
defined as the monoalkyl esters of long chain fatty acids
derived from plant or animal matter which meet - (a) the
registration requirements for
fuels and fuel additives
established by the Environmental Protection Agency
(42 U.S.C
under section 211 of
7545), and,
the American
Society of Testing and Materials (ASTM) D6751.

the requirements of

the Clean Air Act

(b)

(c) R e l a t e d i m p o r t e r s i n t h e C o m m u n i t y :

(18)

— Cremer Energy GmbH, Hamburg, Germany.

— Cargill NV, Ghent, Belgium

— ADM Europoort BV, Rotterdam, The Netherlands

— ADM Hamburg AG, Hamburg, Germany

— ADM International, Rolle, Switzerland

(19)

1.4. Investigation period

(15)

The investigation of dumping and injury covered the
period from 1 April 2007 to 31 March 2008 (‘IP’).
The examination of trends relevant for the assessment
of injury covered the period from January 2004 to the
end of the IP (‘period considered’).

2. PRODUCT CONCERNED AND LIKE PRODUCT

Based on market and publicly available information (5),
all
types of biodiesel and biodiesel blends (a mix of
biodiesel with mineral diesel as explained in recital (20)
below), which are produced and sold in the USA are
considered to be biodiesel fuels and are part of a legis­
and
energy
lative
renewable energy and alternative fuels.

concerning

efficiency

package

The investigation showed that biodiesel produced in the
USA is predominantly ‘fatty acid methyl ester’ (FAME)
derived from a wide range of vegetable oils which
serve as a biodiesel feedstock (6). The term ‘ester’ refers
to the trans-esterification of vegetable oils, namely, the
mingling of the oil with alcohol. The term ‘methyl’ refers
in the
to methanol; the most commonly used alcohol
process, although ethanol can also be used in the
production process, resulting in ‘fatty acid ethyl esters’.
The trans-esterification is a relatively simple chemical
process but it requires the highest industrial standards
to ensure a high quality of biodiesel.

(4) The Government of

the USA provided the complete Internal
Revenue Code updated to reflect
tax legislation up to
15 December 2006 (version December 2006), which is relevant
for the current IP.

all

(5) For

instance (a) Biodiesel handling and use guide issued on
energy
the NREL (National
September 2008 by
(b) Biomass oil analysis issued in June 2004 by the
laboratory),
NREL,
information and specifications issued on
biodiesel by the ASTM, (d) Public news and information issued on
biodiesel by NBB, (e) fact sheets issued by the US Department of
energy under the Clean cities actions, etc.

(c) Public news,

renewable

(16)

In the notice of initiation the product allegedly being
dumped was defined as
fatty-acid monoalkyl esters
and/or paraffinic gasoils from synthesis and/or hydro-

(6) Virgin oils,

including esters derived from various agricultural
commodities such as corn, soybeans, sunflower seeds, cottonseeds,
canola, crambe, rapeseeds, safflowers, flaxseeds, rice bran, mustard
seeds, etc., or animal fats.

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(20)

(21)

(22)

(23)

The investigation confirmed that biodiesel produced in
the USA is generally blended by the producers with
mineral diesel to produce various types of blends (here
referred to as biodiesel blends or mixtures), which are
then sold on the market to various types of customers.
It also appeared that biodiesel was sold in its pure form
to independent companies, which purchased or imported
it for blending with mineral diesel. Blending biodiesel
with mineral diesel
is a relatively simple operation
which may be accomplished for instance by mixing in
tanks at the manufacturing point prior to delivery to a
tanker truck or by a splash mixing in the tanker truck
adding the desired percentages of biodiesel and mineral
diesel or
in-line mixing with the two components
arriving at the tanker truck simultaneously.

To clearly identify the various types of biodiesel blends
or mixtures, there is an internationally recognized system
known as the ‘B’ factor, which states the exact amount of
in any biodiesel blend: for instance, a blend
biodiesel
containing ‘X’ % biodiesel would be labelled B‘X’, while
is referred to as B100, meaning 100 %
pure biodiesel
it was common to see 99 % (7)
biodiesel. In the USA,
of biodiesel and 1 % mineral diesel (B99) being blended
and sold on the market. Contrary to mineral diesel, pure
biodiesel should be used relatively quickly and cannot be
in stock for more than three to four months
kept
otherwise
for
consumption. Blending biodiesel with mineral diesel
allows a longer preservation of
the fuel. The 1 %
mineral diesel in the B99 is sufficiently toxic to retard
mould of the biodiesel.

and become unfit

it would oxidise

The investigation showed that whilst biodiesel and the
high-level biodiesel blends (8) are generally intended to be
sold in the US market for further blending, the low-level
biodiesel blends (9) are typically produced to be sold for
there is a
consumption in the US market. Hence,
distinction between the market
for high-level blends
and the market for low-level blends in the USA.

facie

evidence

complaint

contained prima

The
that
biodiesel and certain blends produced and sold in the
USA and exported to the Community were affecting
the economic situation of
the complaining biodiesel
producers in the Community. Consistent with the charac­
the relevant US producers and domestic
teristics of
concerned
market,

the definition of

the product

(7) In fact 99,9 % as it suffice to add 0,1 % mineral diesel to avail the

blender's credit in the USA.

(8) Basically, the blends from B99 down to B50.
(9) Basically, the blends from B2 up to B20.

intended to cover biodiesel also when incorporated into
the relevant biodiesel blends. The definition of
the
product concerned as mentioned in the notice of
initiation and in recital (16) above, should be clarified
in order to identify the products which were intended
to be covered by the investigation.

The investigation showed that most of
the biodiesel
blends sold for direct consumption in the USA are
B20,
i.e. blends with 20 % biodiesel as explained in
recital (21) above, which can be used for Energy Policy
Act of 1992 (EPAct) (10) compliance, B6, B5 and B2.
Publicly available information states
that any diesel
engine can operate on these blends with basically no
modifications and keeping the warranty from car manu­
factures. When used in low-level blends (between 2 % to
20 % of biodiesel) the performances of the mixture is
similar to that of mineral diesel. When a biodiesel fuel
above B20 is used in an engine, the user may experience
a certain decrease in power, torque and fuel economy
and the warranty of car manufacturers would generally
not apply in case of damages caused to the engine.

The investigation has shown that pure biodiesel and
high-level blends are generally not used for direct
consumption in the USA. The pure biodiesel
is
generally intended to be blended before it is sold on
the market. The blends are ultimately used in the
transport sector as a fuel
in diesel-power engines of
road vehicles such as cars, trucks, busses and also in
trains. Biodiesel can also be used as a heating fuel
in
domestic, commercial or industrial boilers and as a fuel
for generators to produce electricity. Tests are currently
being conducted as to the possibility to use biodiesel
blends in aircrafts.

(24)

(25)

esters

(26) Hence, the product concerned by the investigation should
be defined as
and/or
fatty acid monoalkyl
paraffinic gasoil obtained from synthesis and/or hydro-
treatment, of non-fossil origin, commonly known as
‘biodiesel’, whether in pure form or in blends, which
are above B20. In other words, the product concerned
covers pure biodiesel (B100) originating in the USA and
all blends above B20, namely blends which contain more
that 20 % biodiesel originating in the USA (‘the product
concerned’). This threshold is considered to be appro­
priate to allow a clear distinction between the various
types of blends which are available on the US market.

(10) See Energy Policy Act of 1992

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(27)

(28)

(29)

(30)

It has been found that all types of biodiesel and the
biodiesel
in the blends covered by this investigation,
despite possible differences in terms of raw material
used for the production, or variances in the production
process, have the same or very similar basic physical,
chemical and technical characteristics and are used for
in the
the same purposes. The possible variations
product concerned do not alter its basic definition,
its
characteristics or the perception that various parties have
of it.

(32) One interested party alleged that the product concerned,
in particular pure biodiesel, has different physical and
chemical characteristics than the like biodiesel produced
in the Community. While the EC production of biodiesel
would be based on rapeseed oil, US producers would use
only soybean oil. Therefore it was claimed that these two
types of product would not be interchangeable and
would not directly compete with each other in the
Community market. The interested party pointed in
particular to the fact that the cold flow properties and
the iodine values would be different.

The product concerned is
3824 90 91,
ex 1516 20 98, ex 1518 00 91, ex 1518 00 99.

falling within CN codes
ex 2710 19 41,

ex 3824 90 97,

2.1. Like product

It was found that the products produced and sold on the
domestic market of the USA, which are covered by this
investigation, have similar basic physical, chemical and
those exported
technical characteristics and uses as
from this country to the Community market. Similarly,
the products manufactured by Community producers and
sold on the Community market have similar basic
physical, chemical and technical characteristics and uses
when compared to those exported to the Community
from the country concerned.

(33)

The Commission investigated this claim and found the
following:

(a) The product concerned and the Community like
product share very similar basic characteristics and
sales channels,
are sold via similar or
namely to similar customers
in the Community
market;

identical

(b) The product concerned and the Community like
product both serve the same or very similar end-
uses (see recital (25) above);

that most

It has been claimed that certain users,
in particular in
Germany, are directly using pure biodiesel (B100) as a
cheaper alternative to the use of mineral diesel or to the
consumption in the
usual blends used for direct
this claim
Community market. The examination of
showed
the
Community producers in the Community market were
mainly intended to companies which were blending it
with mineral diesel. The fact that certain fleet owners
an exception at
revert
the
rather
Community level. Rather
than substituting mineral
is a complementary product on the
diesel, biodiesel
Community market.

to B100 is

sales made

the

by

of

the CFPP of

(c) As to the cold flow properties, it should be clarified
that it refers to the Cold Filter Plugging Point (CFPP)
which is the temperature at which a fuel will cause a
fuel filter to plug due to fuel components, which
have begun to crystallize or gel. The investigation
the Community like
revealed that
product is lower than that of the biodiesel exported
from the USA. However, this is a minor difference
which can easily be compensated either by mixing
different types of biodiesel or by using additives in
pure biodiesel,
time. The
difference in CFPP practically does not play any
role in most of the blends sold in the Community
market.

in particular

in winter

(31)

This does not change the fact that the various types of
the product concerned produced in the USA and
exported to the Community are interchangeable with
those produced and sold in the Community by
Community biodiesel producers. There is no significant
difference in the uses and the perception by operators
and users in the market which are such as to alter the
definition of the like product.

(d) Regarding the iodine value which is a measurement
for the stability of the fuel against oxidation, it was
found that
the values between rapeseed oil and
soybean oil correlate to some extent: numbers
range from 94 to 120 for rapeseed oil and from
soybean oil. While the main
117 to 143 for
feedstock used in the Community is rapeseed,
it
has to be noted that both Community and US
producers use also a wide variety of
feedstock to
produce biodiesel. Often various types of biodiesel
are mixed to obtain a more homogeneous product.

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(34) Given that ‘likeness’ does not require that products are
identical in all respects according to Article 1(4) of the
basic Regulation, any minor variation in the various
product
to change the overall
finding of likeness between the product concerned and
the Community like product.

types is not sufficient

(39)

3.2. Normal value

of

basic Regulation,

For the determination of normal value in accordance
with Article 2(2)
the
the
Commission first established whether the domestic sales
of the product concerned to independent customers were
made in representative volumes,
i.e. whether the total
volume of such sales represented at least 5 % of the
total export sales volume to the Community during the
IP.

(35)

Therefore no differences were found between the various
types of the product concerned and the Community like
products sold on the Community market which would
lead to the conclusion that the products produced and
sold by Community producers on the Community
market are not like products, sharing the same or very
similar basic physical, chemical and technical characteris­
tics as to the types of product concerned produced in the
It is therefore
USA and exported to the Community.
provisionally concluded that all types of biodiesel are
considered
of
be
Article 1(4) of the basic Regulation.

alike within the meaning

to

3. DUMPING

3.1. Preliminary remark

(36) During the investigation it was found that the US auth­
orities were granting a so-called blender’s credit of USD 1
per gallon of pure biodiesel present
in a blend of
biodiesel with mineral diesel.

(37) All exporting producers selected in the sample claimed
that an adjustment should be made for their export and
domestic sales of blended biodiesel for the determination
of their dumping margin, either by adjusting their sales
price upward with the corresponding credit received or
by subtracting the blender’s credit
from the cost of
production of the relevant sales.

(38)

It should be noted that, in accordance with the relevant
legal provisions, namely Article 14(1) of the basic Regu­
lation and Article 24(1) of Council Regulation (EC) No
2026/97 of 6 October 1997 on protection against
subsidized imports from countries not members of the
European Community (11), no product shall be subject to
both anti-dumping and countervailing duties for
the
purpose of dealing with one and the same situation
arising from dumping or
from export subsidization.
However, the AS proceeding showed that the blender's
credit
is a subsidy available both to export and to
domestic sales exactly in the same way and for the
same amounts and is therefore not an export subsidy.
Hence, it was provisionally considered that the claims for
an adjustment could not be accepted.

(11) OJ L 288, 21.10.1997, p. 1.

(40)

In the case of one sampled exporting producer it was
found that it had no representative sales of the product
concerned on the domestic market. For this exporting
producer, normal value had to be constructed on the
basis of Article 2(3) of the basic Regulation.

3.2.1. Sampled cooperating exporting producers with overall

representative domestic sales volume

(41)

For the sampled exporting producers with overall rep­
resentative domestic sales, the Commission subsequently
identified those product
types sold on the domestic
market by the exporting producer, which were identical
or directly comparable to the types sold for export to the
Community.

(42) Domestic

sufficiently

sales of a particular product

type were
representative when the
considered as
type sold on the domestic
volume of
market to independent customers during the IP represen­
ted 5 % or more of the total volume of the comparable
product type sold for export to the Community.

that product

(43)

The Commission subsequently examined whether the
domestic sales of
the companies concerned could be
considered as being made in the ordinary course of
trade pursuant to Article 2(4) of the basic Regulation.
This was done by establishing for each product type
the proportion of profitable
to independent
customers on the domestic market during the investi­
gation period.

sales

(44) Where the sales volume of a product type, sold at a net
to or above the calculated cost of
sales price equal
the total
production, represented more than 80 % of
sales volume of
type, and where the weighted
average price of that type was equal to or above the
cost of production, normal value was based on the
actual domestic price. This price was calculated as a
weighted average of the prices of all domestic sales of
that type made during the IP,
irrespective of whether
these sales were profitable or not.

that

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(45) Where the volume of profitable sales of a product type
represented 80 % or less of the total sales volume of that
type, or where the weighted average price of that type
was below the cost of production, normal value was
based on the actual domestic price, calculated as a
weighted average of profitable sales of that type only.

outside the Community, export prices were established
on the basis of the resale prices to the first independent
customers in the Community, pursuant to Article 2(9) of
the basic Regulation, duly adjusted for all costs incurred
between importation and resale, and profits.

(46)

(47)

For product types not sold in representative quantities on
the domestic market or not sold in the ordinary course
of trade, normal value had to be constructed on the basis
of Article 2(3) of the basic Regulation. To this end, the
selling, general and administrative (‘SG&A’) expenses and
a reasonable profit margin were added to the exporter's
own average cost of manufacturing per product
type
during the IP.
In accordance with Article 2(6) of the
basic Regulation, the percentage for SG&A and profit
margin were based on the weighted average SG&A and
profit margin of sales in the ordinary course of trade of
the like product of the respective exporting producer.

3.4. Comparison

(51)

The comparison between normal value and export price
was made on an ex-works basis.

(52)

For the purpose of ensuring a fair comparison between
the normal value and the export price, due allowance in
the form of adjustments was made for differences
affecting prices and price comparability in accordance
with Article 2(10) of the basic Regulation.

3.2.2. The sampled cooperating exporting producer without

overall representative domestic sales volume

(53) On this basis, allowances for transport, ocean freight and
insurance costs, handling loading and ancillary costs,
credit costs and commissions have been made where
applicable and justified.

For the cooperating exporting producer without rep­
resentative domestic sales, normal value was constructed
in accordance with Article 2(3) of the basic Regulation
by adding to the company's own manufacturing costs for
the product concerned the SG&A expenses and a
reasonable
accordance with
Article 2(6)(a) of the basic Regulation, the percentage
for SG&A and profit margin were based on the
weighted average SG&A and profit margin determined
for other exporting producers subject to the investigation
in respect of
the like
product on the domestic market.

their production and sales of

profit margin.

In

3.5. Dumping margins

3.5.1. For the sampled cooperating exporting producers

(54)

For the sampled companies, the weighted average normal
value of each type of the product concerned exported to
the Community was compared with the weighted average
export price of the corresponding type of the product
concerned, as provided for in Article 2(11) and (12) of
the basic Regulation.

(48) As regards this company, an adjustment was made to
take into account its start-up situation, as provided for
in Article 2(5) of the basic Regulation. An adjustment
regarding its overhead costs was made in order to take
into account
the
low capacity utilisation of
production installations during the start-up phase.

the

(55) On this basis, the provisional weighted average dumping
margins expressed as a percentage of the CIF Community
frontier price, duty unpaid, are the following:

3.3. Export price

(49)

Export sales prices were established on the basis of the
prices actually paid or payable for the product concerned
in accordance with Article 2(8) of the basic Regulation.

(50) Where export

to the Community were made
through related trading companies located inside or

sales

Company

Provisional dumping
margin

Archer Daniels Midland Company

Cargill Inc.

Green Earth Fuels of Houston LLC

Imperium Renewables Inc.

Peter Cremer North America LP

World Energy Alternatives LLC

3,4 %

10,4 %

73,4 %

29,5 %

57,3 %

51,7 %

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(56)

3.5.2. For the other cooperating exporting producers

The weighted average dumping margin of
the coop­
erating exporting producers not included in the sample
was calculated in accordance with the provisions of
Article 9(6) of the basic Regulation. This margin was
calculated on the basis of the margins established for
the sampled exporting producers. On this basis,
the
dumping margin
cooperating
calculated
companies not included in the sample was provisionally
set at 33,7 % of the CIF Community frontier price, duty
unpaid.

the

for

3.5.3. For the non-cooperating exporting producers

(57) With regard to all other exporters in the USA,

the
Commission first established the level of cooperation. A
comparison was made between the total export quan­
tities indicated in the sampling replies received from all
cooperating exporting producers and the total
imports
from the USA as derived from US export statistics. The
percentage of cooperation found was 81 %. On this basis,
the level of cooperation was deemed to be high. It was
therefore considered appropriate to set
the dumping
margin for the non-cooperating exporting producers at
a level corresponding to the one found for the coop­
erating exporting producer
in the sample with the
highest individual dumping and injury margin in order
to ensure the effectiveness of the measures.

(58) On this basis, the country-wide level of dumping was
the CIF

established
provisionally
Community frontier price, duty unpaid.

57,3 % of

at

4. COMMUNITY INDUSTRY

4.1. Community production and standing

(59) All available information, including information provided
in the complaint and data collected from Community
producers before and after the initiation of the investi­
gation was used in order to establish total Community
production and the support for the investigation.

(60)

Based on this information it was found that overall
Community production was around 5 400 thousand
tonnes during the IP. Three companies belonging to
the same group were found to be related to exporting
producers in the USA and the group was also itself
product
importing
the
concerned from its
in the USA.
Therefore,
these companies were excluded from the
notion of Community production within the meaning
of Article 4(1) and Article 5(4) of the basic Regulation.
As a consequence, the production volume on the basis of

of
related exporters

significant

quantities

(61)

(62)

(63)

which standing was established was in the range of
4 200 to 4 600 thousand tonnes.

It was established that the companies that supported the
complaint and co-operated in the investigation represen­
ted more than 60 % of the Community production of
(60). The
biodiesel during the IP indicated in recital
company referred to in recital (63) below which failed
to co-operate with the investigation was not considered
as a supporter of the complaint. It is concluded that the
complaint and the investigation are supported by a major
proportion of Community production within the
meaning of Article 4(1) and Article 5(4) of the basic
Regulation.

4.2. Sampling

Because of the large number of Community producers, it
to sampling to establish the
was decided to resort
injury. Sampling forms were sent
existence of material
to all potential producers of
in the
the like product
Community. Initially more than 40 companies provided
meaningful
information to the sampling forms and
agreed to cooperate with the proceeding. The three
companies mentioned in recital (60) were not considered
for the sampling exercise for the reasons mentioned in
that recital.

a

remaining companies

From the
sample of 11
companies was selected on the basis of the largest rep­
resentative volume of production and sales within the
Community, as indicated in recital
(11) above. One
producer originally considered for the sample had to be
excluded as it failed to cooperate with the investigation.
The remaining ten sampled companies are considered to
be representative for the entire Community production.

(64)

Reference hereafter to ‘Community industry’ or ‘sampled
Community producers’
to these ten sampled
refers
producers.

5. INJURY

(65) As mentioned in recital (15) above, the examination of
the trends concerning the assessment of injury covered
the period from January 2004 to the end of the IP.
However the investigation showed that the Community
industry was practically starting up in 2004. It was, thus,
considered more appropriate to make an analysis based
the period 2005 to the IP (‘period
on trends
analysed’). The information collected regarding 2004 is
nevertheless
that
follows.

also presented in the

assessment

for

L 67/30

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5.1. Community consumption

Table 1

Community Consumption

2004

2005

2006

2007

IP

Tonnes

1 936 034

3 204 504

4 968 838

6 644 042

6 608 659

Index 2005 = 100

60

100

155

207

206

(66)

Community consumption was established on the basis of volume of
the overall Community
production on the Community market of all Community producers, as ascertained in recital (60)
above, minus their exports plus imports from the country concerned by this investigation and
imports from other third countries.

(67) As to the volumes of imports from the USA, the following sources of information were available:

— the Eurostat data for the different CN codes under which the product was classified;

— the USA export statistics;

— other statistical

information of confidential nature on imports provided by interested parties.

(68) However, analysis of this information showed that the Eurostat data could not be used for the
purpose of assessing consumption since until the end of 2007 there was no distinct CN code
available for the customs classification of the various types of the product concerned. Imports of
the product concerned were classified under a number of codes which also contained import data of
other products. Hence,
it was considered more appropriate to use the US exports statistics for
establishing reliable imports and consumption figures and import trends. In using this source of
information, account was taken of the shipment time needed for the goods to arrive from the USA to
the Community and thus the export statistics were adjusted by one month in order to take account
of this time-lag.

(69) With regard to imports from other countries and exports of the Community producers, in view of
the limitation regarding the use of Eurostat data described above, the investigation relied on the data
reported in the complaint.

(70)

Based on the above, it was found that Community consumption of biodiesel increased by 107 %
between 2005 and 2007 and then slightly decreased in the IP by 1 percentage point. Overall,
consumption more than doubled over the period analysed.

(71)

The increase in demand was mainly due to the incentives taken by Member States to promote the use
of bio-fuels following the adoption of Directive 2003/30/EC of the European Parliament and of the
Council of 8 May 2003 on the promotion of the use of bio-fuels or other renewable fuels for
transport (12) and Council Directive 2003/96/EC of 27 October 2003 restructuring the Community
framework for the taxation of energy products and electricity (13).

(12) OJ L 123, 17.5.2003, p. 42.
(13) OJ L 283, 31.10.2003, p. 51.

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5.2. Volume of the imports from the country concerned and market share

Imports from USA

Tonnes

Index 2005 = 100

Market share

Index 2005 = 100

Source: USA export statistics.

Table 2

2004

2 634

23

0,1 %

25

2005

2006

2007

IP

11 504

50 838

730 922

1 137 152

100

0,4 %

100

442

1,0 %

250

6 354

11,0 %

2 750

9 885

17,2 %

4 300

(72)

Import volumes from the USA increased significantly from around 11 500 tonnes in 2005 to around
1 137 000 tonnes in the IP.

(73) During the period analysed, the dumped imports from the USA continuously increased their share of
the Community market from 0,4 % in 2005 to 17,2 % in the IP. Therefore, there has been a
significant increase in dumped imports both in absolute terms and in relative terms compared to
the Community consumption over that period.

(74)

Splash and dash is a term used by biodiesel operators to describe a pattern by which biodiesel of
allegedly foreign origin is transhipped to the Community via the USA where it is mixed with basically
a drop (0,01 % of the final blend) of conventional diesel in order for the blender to avail himself of a
subsidy in the USA.

(75) US parties have claimed that splash and dash explains the surge of US imports into the Community
market, as it allegedly represented 40 % of US imports during the IP. These parties have also claimed
that because the investigation was initiated against imports of biodiesel originating in the USA, the
quantities concerned by the splash and dash should be separated from the injury analysis and treated
as imports from other third countries.

(76) On the other hand the complainant argued that imports of splash and dash, if any, would at most
represent 10 % of the US export volumes, and would thus be insignificant and not alter the findings
that large quantities of dumped imports from the USA entered the Community market, in particular
during the IP.

(77)

The investigation has shown that the US export statistics do not allow one to distinguish between
any biodiesel exported under the alleged splash and dash process and the other US exports recorded in
their ‘Exports’ chapter. In the same statistics there were hardly any quantities found to be declared
under the ‘Re-Exports’ chapter. The US authorities also stated that all quantities included in their
‘Exports’ chapter are products deemed to be originating in the USA.

(78) Moreover, most of the US companies investigated declared that it was not possible to differentiate the
quantities exported to the Community or sold on the domestic market between the quantities
produced or sourced in the USA and those exported under the splash and dash process.

(79) Also, it was found in the case of the investigated companies in the USA that all the exports of
biodiesel were declared, both upon exportation by the US exporters and upon importation by the
related importers in the Community, as US origin biodiesel.

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(80) On the basis of the above and taking into account, in particular, that splash and dash exports, if any,
were declared with a US origin and deemed as originating in the USA by the US authorities, it was
considered that there was no ground to treat them as non-US imports.

5.3. Prices of the dumped imports and price undercutting

5.3.1. Unit selling price

Prices in EUR/tonne

Index 2005 = 100

Table 3

2005

575

100

2004

463

81

2006

600

104

2007

596

104

IP

616

107

Source: US export statistics and questionnaire replies of the sampled US exporters.

(81)

The US export statistics were also used to establish the price trends of the dumped imports orig­
inating in the USA, in particular for 2007 and the IP. In order to reflect the price level at Community
border, the average export prices were adjusted with the relevant freight and insurance costs. It
should be noted that for earlier periods of the period analysed, namely 2005 and 2006, and also
for 2004, the US export statistics were not fully reliable in terms of sales values as the computed
average export prices were found to be disproportionally high compared to the prices reported by the
cooperating exporting producers. Under these circumstances the average US export price for these
years was based on the questionnaire responses provided by the sampled exporting producers in the
USA.

(82) Average prices for imports from the USA fluctuated during the period considered and overall showed

an increase of 7 % between 2005 and the IP.

(83)

(84)

5.3.2. Price undercutting

For the purposes of analysing price undercutting, the weighted average sales prices of the sampled
Community producers charged to unrelated customers on the Community market, adjusted to an ex-
works level, were compared to the corresponding weighted average prices of the imports from the
USA, established on a CIF basis for the sampled exporting producers in the USA. An adjustment for
the customs duties, post-importation costs and for the differences in feedstock (see next recital) used
for the production of biodiesel was applied where appropriate.

The investigation identified different types of the product concerned in particular based on the
feedstock used in the production process. Whilst the main feedstock used in the Community is
rapeseed, the US producers use other feedstock such as soybeans, canola, palm, etc. Given that
feedstock is by far the main raw material for the production of the product concerned,
it was
considered that an adjustment for feedstock difference should be granted. This adjustment was
thus calculated to correspond to the market value of the difference between the relevant types of
the product concerned compared to the type of products produced from rapeseed. In this way both
the weighted average sales prices of the Community industry and the weighted average price of the
imports concerned were compared on the same feedstock basis, namely rapeseed.

(85)

Based on the above methodology, the difference between the US and Community prices, expressed as
a percentage of the Community industry's weighted average ex-works price, i.e. the price undercutting
margin, was found to range from 18,9 % to 33,0 %.

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5.4. Economic situation of the Community industry

(86)

In accordance with Article 3(5) of the basic Regulation, the examination of the impact of dumped
imports on the Community industry included an evaluation of all economic indicators established for
the Community industry over the period analysed.

5.4.1. Production capacity, production and capacity utilisation

Table 4

Production capacity
(tonnes)

2004

2005

2006

2007

IP

529 000

920 000

1 306 572

2 189 910

2 520 508

Index 2005 = 100

58

100

142

238

274

Production (tonnes)

475 710

813 657

1 214 054

1 832 649

2 016 573

Index 2005 = 100

Capacity utilisation

Index 2005 = 100

58

90 %

102

100

88 %

100

149

93 %

106

225

84 %

95

248

80 %

91

Source: Questionnaire replies of the sampled Community producers.

(87)

(88)

In line with the increased consumption,
the sampled Community
producers continuously increased during the period analysed. It increased by 42 % between 2005
and 2006 followed by a further increase of 68 % in 2007 and a further increase of 15 % between
2007 and the IP. It marked an overall increase of 174 % over the period analysed. The increase in
production capacity resulted from new investments in anticipation of the growth in demand.

the production capacity of

Indeed the Community industry growth in production capacity has to be seen against the back­
ground of a Community bio-fuels and other renewable fuels consumption target of 5,75 %, set by
Directive 2003/30/EC, which is calculated on the basis of energy content of all petrol and diesel, for
transport purposes, placed on the Community market by 31 December 2010. Moreover, in March
2007, the European Council endorsed a 10 % binding minimum target to be achieved by all Member
States for the share of bio-fuels in the overall Community transport petrol and diesel consumption by
2020 (14). This target would increase the Community consumption of bio-fuels to around 33 million
tonnes of oil equivalent by that year. The production capacity in the whole Community in 2006 was
it is understandable that Community
estimated at 6 million tonnes only. In view of the above,
producers invested in additional capacities in anticipation of the growth in demand.

(89)

Production of the like product by the Community industry increased also continually to reach an
overall increase of 148 % over the period analysed.

(90) As a result of the relative slower pace in the increase of production volumes vis-à-vis the increase of
production capacity, the capacity utilisation of the Community industry decreased by 9 % over the
period analysed.

(14) Following this endorsement, the Parliament and the Council have agreed, in December 2008, on a Directive for the
promotion of the use of energy from renewable sources containing a 10 % target for the use of renewable energy in
transport in 2020, which is expected to be met mainly by bio-fuels.

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5.4.2. Sales volume, market share and average unit prices in the Community

Table 5

Sales volumes
(tonnes)

2004

2005

2006

2007

IP

476 552

810 168

1 194 594

1 792 502

1 972 184

Index 2005 = 100

59

100

147

221

243

Market share

24,6 %

25,3 %

24,0 %

27,0 %

29,8 %

Index 2005 = 100

Average prices
(EUR/tonne)

Index 2005 = 100

97

655

86

100

759

100

95

900

119

107

892

118

118

933

123

Source: Questionnaire replies of the sampled Community producers.

(91)

In line with the evolution of consumption, the volume of sales made by the Community industry on
the Community market increased steadily, recording an overall increase of 143 % during the period
analysed. During the same period the Community industry increased also its market share by 4,5
percentage points.

(92) Average sales prices of the Community industry in the Community market increased by 23 % over
the period analysed. The increase in prices was justified in view of the increase of costs of raw
materials and other inputs.

5.4.3. Growth

(93)

The growth of the Community industry is reflected in its volume indicators such as production, sales
but, in particular, in its market share. Despite a booming consumption in the Community market
during the period analysed the growth of the market share of the sampled Community producers was
relatively modest. In particular between 2006 and the IP, the sampled Community producers only
gained 5,8 percentage points of market share. During the same time, dumped imports managed to
gain over 16 percentage points of market share. The fact that the Community industry could not
fully benefit from the market growth had an overall negative impact on its economic situation.
injury factors such as production, utilisation of production capacity, productivity, sales,
Several
investments policy, return on investments, were severely affected.

5.4.4. Stocks

Stocks
(tonnes)

Table 6

2004

2005

2006

2007

IP

11 195

14 663

34 123

55 410

58 566

Index 2005 = 100

76

100

233

378

399

Source: Questionnaire replies of the sampled Community producers.

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(94) Over the period analysed stocks of biodiesel increased by around 200 %. This growth in inventories
took place throughout the period analysed and followed in a more pronounced manner the growth
in production volumes of the Community industry over the same period. However, it is considered
that because biodiesel cannot be stored for a period of time exceeding 6 months (on average the
storage period is only around three months), data related to stocks have only limited value for
assessing the economic situation of the Community industry.

5.4.5. Profitability, investments, return on investments, cash flow and ability to raise capital

Table 7

Profitability

Index 2005 = 100

2004

9,3 %

51

2005

2006

18,3 %

18,0 %

100

98

2007

5,7 %

31

IP

5,7 %

31

Investments in EUR 000

19 497

70 885

237 115

140 014

131 358

Index 2005 = 100

Return on investments

Index 2005 = 100

28

92 %

81

100

335

114 %

108 %

100

95

198

23 %

20

185

23 %

20

Cash flow in EUR 000

24 113

131 211

213 560

167 042

180 602

Index 2005 = 100

18

100

163

127

138

Source: Questionnaire replies of the sampled Community producers.

(95)

(96)

(97)

(98)

Profitability of the sampled Community producers was established by expressing the net pre-tax
profit of the sales of the like product in the Community market as a percentage to the turnover
of these sales. Over the period analysed the profitability of the sampled Community producers
decreased from a profit of 18,3 % in 2005 to 5,7 % in the IP. This represents a drop of 12,6
percentage points over the period analysed.

The level of investments in the production of biodiesel made by the sampled Community producers
increased by 235 % between 2005 and 2006. This increase was related to the expansion of
production capacity in anticipation of an increasing demand in the Community. In this regard it
is noted that in most cases investments are planned for at least two years before a biodiesel plant
becomes fully operational. The same producers continued to invest in 2007 and in the IP yet at a
much lower pace. This period coincides with the surge of dumped imports in the Community
market.

The sampled Community producers’ return on investment, which expresses their pre-tax result as a
percentage of the average opening and closing net book value of the assets employed in the
production of biodiesel
followed the negative trend in profitability. The actual decline was
however more dramatic as it decreased by 91 percentage points over the period analysed. It is
considered that the deterioration of the return on investments is a clear indication of the dete­
rioration of the economic situation of the Community industry.

The trend of the cash flow, which is the ability of the industry to self-finance the activities, has shown
an increase of 38 % over the period analysed. Despite the fall in profitability over the same period,
this indicator shows a positive trend mainly due to the increase in the depreciation costs which are
included for establishing the level of cash flow. Another reason was that the fall in profits in absolute
terms, over the period considered was not as pronounced as the fall in turnover. Between 2006 and
the IP, however, cash flow has shown a decrease of 15 % signifying a downturn in the latter part of
the period analysed when dumped imports were more present in the Community market.

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5.4.6. Employment, productivity and wages

Employment – Full time
equivalent (FTE)

Index 2005 = 100

Productivity (tonnes/FTE)

Index 2005 = 100

Table 8

2005

182

100

4 470

100

2004

61

34

7 798

174

2006

278

153

4 367

98

2007

462

254

3 967

89

IP

506

278

3 985

89

Wages EUR/FTE

62 374

59 395

54 290

55 433

55 555

Index 2005 = 100

105

100

91

93

94

Source: Questionnaire replies of the sampled Community producers.

(99)

In line with the increase in production and sales volumes, employment of the Community industry
increased by 178 % in the period analysed. It is noted that the biodiesel industry is a capital intensive
industry not requiring a large labour force in the production process.

(100) Average wages decreased by 6 % over the period analysed. This is explained by the fact that the
additional workforce enrolled by the Community industry for expanding production towards the end
of the period analysed required less qualification.

(101) Productivity decreased by 11 % between 2005 and the IP.

5.4.7. Magnitude of the actual margin of dumping and recovery from past dumping

(102) The dumping margins for exporting producers in the USA are specified above in the dumping section
and are significantly above de minimis. Furthermore, given the volumes and the prices of the dumped
imports, the impact of the actual margin of dumping cannot be considered to be negligible.

5.4.8. Producers in the Community not included in the sample

(103) The analysis of data pertaining to the Community market suggested that Community producers other
than those included in the sample and the ones mentioned in recital (60) lost considerable market
share over the period analysed on the sales of their own produced biodiesel on the Community
market. The loss in market share by these producers is estimated to be above 20 percentage points
over the period analysed.

(104) From the information provided by the complainant, it appeared that many of these companies either
ceased or reduced their biodiesel activity and were not able to adequately cooperate with the
investigation.

(105) Moreover, a number of companies that submitted information in the framework of the sampling
exercise indicated that they had to downsize production and staff in view of the cheap imports from
the USA. Similar comments were made by other producers which were ready to start production but
which had to delay their entering into the market because of the surge of low-priced imports from
the USA, in particular during the IP.

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(106) The above data relating to producers not included in the sample would reinforce the conclusions

regarding the injury suffered by the sampled Community producers.

5.5. Conclusion on injury

(107)

In the context of a growing demand, the investigation showed that the situation of the sampled
Community producers improved with regard to volume indicators such as production (+150 %),
production capacity (+174 %) and sales volume (+143 %) over the period analysed. The sampled
Community producers also increased their market share from 25,3 % in 2005 to 29,8 % during the
IP, namely a modest increase of 4,5 percentage points. Employment and investments also increased
in view of the increasing demand for biodiesel
in the Community market during that period.
However, because the production volume did not follow the market growth, the utilisation of
production capacity fell by 9 % and productivity decreased by 11 % over the period analysed.

(108) The main indicators related to the financial situation of the sampled Community producers worsened
during the period analysed. Profitability decreased from around 18 % in 2005 and 2006 to below
6 % during the IP. Notwithstanding their ability to self finance their activities, in particular because of
the increase in cash flow, the return on investments declined dramatically by 80 % during the IP.

(109) The investigation also showed that the sampled Community producers experienced a sharp increase
in their costs between 2005 and 2007 (+36 %) and between 2005 and the IP (+42 %), because of
increases in the feedstock prices (mainly rapeseed and soy bean oil), which represent close to 80 % of
the full costs of biodiesel. These cost increases could not be fully passed on to customers on the
Community market.

(110)

In the light of the foregoing it can be concluded that the Community industry as a whole has
suffered material injury within the meaning of Article 3(5) of the basic Regulation.

6.1. Introduction

6. CAUSALITY

(111)

In accordance with Article 3(6) and Article 3(7) of the basic Regulation, it was examined whether the
dumped imports originating in the USA have caused injury to the Community industry to a degree
that enables it to be classified as material. Known factors other than the dumped imports, which
could at the same time be injuring the Community industry, were also examined to ensure that
possible injury caused by these other factors was not attributed to the dumped imports.

6.2. Effect of the dumped imports

(112) The investigation showed that low-priced dumped imports from the USA significantly increased in
terms of volume, namely by 100 times, during the period analysed. This resulted in a significant
increase in their market share by 16,8 percentage points, from 0,4 % in 2005 to 17,2 % in the IP. In
order to demonstrate the significance of the impact that the surge of the dumped imports from the
USA had on the Community, it is noted that an increase in market share of 16,8 percentage points
was achieved within a period of 15 months.

(113) At the same time, despite the significant increase in consumption, the Community industry, in its
core market, was only able to gain around 4,5 percentage points of market share during the period
analysed. The investigation showed that this was exclusively at the expense of other Community
producers which ceased to produce or which downsized production in the period analysed.

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(114) The average prices of the dumped imports increased by 7 % between 2005 and the IP, but were
significantly lower than those of the Community industry during the same period. Hence, the prices
of the dumped imports significantly undercut Community industry prices with an average under­
cutting margin of 25 % during the IP.

(115) The pressure exercised by the surge of low-priced dumped imports on the Community market did
not allow the Community industry to set its sales prices in line with market conditions and the cost
in the IP the average prices of feedstock used by the Community industry to
increases. Indeed,
produce biodiesel, were 25 % higher than in 2006. The Community industry was only able to
pass to its customers a price increase limited to 4 % while its full costs increased by 20 % over
the same period. It is noteworthy that the price of the main feedstock used by the US producers,
namely soybean oil, also increased markedly over the same period. However, as shown in recital
(109) above these increases in costs were not reflected in the prices of the dumped imports.

(116)

In order to further demonstrate the causal link between the surge of low-priced dumped imports
from the USA and the injury suffered by the Community industry, the situation on the Community
market in the period 2005 to 2006, when dumped imports were not present, was compared to the
situation prevailing in the market between 2006 to the IP, when the surge of low-priced dumped
imports took place.

(117)

In the period from 2005 to 2006, when dumped imports were absent from the Community market,
consumption increased by around 1,8 million tonnes. All the producers in the Community could
prepare their business plans with a perspective of a fast growing and healthy market. In that period
prices increased by 19 % and the Community industry achieved profits as high as 18,3 %. In 2007
and during the IP, the situation changed dramatically. Low-priced dumped imports from the USA
started to penetrate the market. Although the market continued to expand by 1,6 million tonnes,
most of this market increase (over 1 million tonnes) was taken by the dumped imports from the
USA. The Community industry only gained modest market share, its main costs to produce biodiesel
significantly increased by around 25 % but its average sales price increased only by around 4 % in the
same period. Accordingly, its overall economic and financial situation deteriorated during the IP as
profits were significantly reduced to less than 6 % on turnover.

(118) Based on the above, it is provisionally concluded that the low-priced dumped imports from the USA,
which significantly undercut the prices of the Community industry during the IP and which also
significantly increased in volume, have had a determining role in the material injury suffered by the
Community industry, which is reflected in particular in the deterioration of its financial situation
during the IP.

6.3. Effect of other factors

6.3.1. Imports from other third countries

Table 9

Other third countries

2004

2005

2006

2007

IP

Total imports
(tonnes)

Index

Market share

Index 2005 = 100

0

0

0 %

0

30 000

55 000

144 596

147 812

100

0,9 %

100

183

1,1 %

122

482

2,2 %

244

493

2,2 %

244

Source: Information provided by the complainant.

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(119)

Import volumes from third countries could not be accurately assessed in the investigation for the
reasons explained in recital (69) above. Thus, the data of the table above is based on estimates
provided by the complainant.

(120) The imports from third countries not concerned by this investigation increased from about 30 000
tonnes in 2005 to 147 812 tonnes during the IP. This resulted in a moderate market share increase
of 1,3 percentage points over the same period. It was therefore provisionally concluded that imports
from other third countries cannot have made more than negligible contribution to the injury suffered
by the Community industry.

6.3.2. Development of demand

(121)

In view of the significant growth in demand over the period considered and the period analysed, the
injury suffered by the Community industry during the IP cannot be attributed to the
material
negligible contraction in demand (–0,5 %) observed on the Community market between 2007 and
the IP.

6.3.3. Public Policy Decisions

(122) One interested party alleged that the reintroduction of energy taxes in Germany for biodiesel (15),
would have negatively influenced the economic situation of Community producers supplying that
particular Member State.

(123) The investigation revealed that indeed pure bio-fuels used in Germany have benefitted from a tax
incentive since 1999 which was reduced as of 1 August 2006. However, on 1 January 2007 a
mandatory blending requirement was introduced (16) fixing the biodiesel quota to 4,4 % calculated on
the basis of energy content of all petrol and diesel placed on the German market for transport
purposes. Operators that fail to fulfil this quota have to pay a fine of EUR 0,60 per litre of biodiesel
for which they fall short of the quota. To a large extent this mandatory blending requirement appears
to have compensated the alleged sales losses and to have counterbalanced the reduction in incentives.
Indeed, the investigation has shown that the sales volumes of the sampled Community producers
supplying the German market rose by 68 % between 2006 and the IP.

(124) Based on the above, it is considered that decisions taken by public authorities in the Community
cannot break the casual link between the dumped imports and the material injury suffered by the
Community industry.

6.3.4. Idle production capacity of Community producers

(125) One interested party alleged that, spurred by public policy measures to promote the production of
biodiesel, many companies in the Community decided to invest in expanding existing production
capacities and in new plants. That party alleged that the production capacity for biodiesel in the
Community was as high as 11,5 million tonnes during the IP. It further alleged that, since the
development of consumption did not meet
the expectations, a significant part of production
capacity remained idle and would have remained idle even without the imports from the USA. As
a result, the relative fixed costs had a negative effect on profitability and also on the return on
investment and cash flow of Community producers.

(15) The ‘Energiesteuergesetz’ entered into force on 1 August 2006 imposing a tax of 9 Eurocents per litre B 100.
(16) ‘Biokraftstoffquotengesetz’ BGBl. 2006, part I Nr. 62 of 21.12.2006, p. 3180, implementing Directive 2003/30/EC of

the European Parliament and the Council and Council Directive 2003/96/EC.

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(126)

In this regard it is noted that the investigation focused on the situation of the Community producers.
Even if it is a fact that the production capacity of the Community industry increased (+189 %)
it is noteworthy that the main cost drivers in the
relatively more than the demand (+106 %),
biodiesel production are the variable costs.
(109) above, raw
Indeed, as mentioned in recital
material for the production of biodiesel represents 80 % of full costs. The further examination of
this claim showed that the share of the fixed costs in the production and sales of biodiesel rep­
resented only 6 % of the overall costs. Hence, any alleged impact of increased fixed costs, as a result
of unused capacity, cannot explain the significant deterioration in the financial situation of the
Community industry during the IP.

(127)

In addition, it is noteworthy that as indicated in table 4 above, the capacity utilisation rate of the
sampled Community producers was 80 % during the IP. Hence, the alleged over capacity in the
Community was not evidenced in the case of the sampled Community producers.

(128) On the basis of the above, it is considered that any negative impact the idle production capacity may
have had on the Community industry was not such as to break the causal link between the dumped
imports and the injury suffered by the Community industry.

6.3.5. Increased demand for feedstock and increasing prices

(129) One interested party claimed that the increased demand for rapeseed and rapeseed oil led to high raw
material prices in the Community. The fact that Community producers rely on rapeseed oil as the
main raw material would explain why they may have suffered more than other producers using other
vegetable oils such as soybean oil or palm oil to produce biodiesel.

(130)

It is firstly noted that the investigation revealed that the sampled Community producers were not
relying solely on rapeseed oil for their production of biodiesel but also other vegetable oils (soybean,
palm, sunflower) and occasionally animal fat.

(131) Moreover, it is indeed acknowledged in recital (109) above that the Community industry faced a
significant increase in its raw material (feedstock) costs over the period analysed. However, this
development has to be seen against a general increase in prices of agricultural products worldwide
and it is noted in this respect that the price increase for soybean oil (the main feedstock used by the
producers in the country concerned) was more pronounced over the same period. Accordingly, all
types of biodiesel were affected by feedstock price increase.

(132)

In a market governed by effective competition, it should be expected that producers would be able to
recover the costs increases and pass it on to the market. However, the investigation showed that it
was the pressure exercised by the surge of low-priced dumped imports on the Community market
which did not allow the Community producers to set their sales prices in line with market conditions
and the cost increases. As mentioned also the main feedstock used by the US producers, namely
soybean oil, marked a pronounced price increase in the period analysed. However, these increases in
costs in the USA were not reflected in the prices of the dumped imports in the Community market.

(133) Against this background the raw material price increase cannot break the casual link between the

dumped imports and the injury suffered by the Community industry.

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6.3.6. Price development of mineral diesel

(134) One interested party argued that because of a strong correlation between mineral diesel prices and
biodiesel prices, the increase of the biodiesel prices, which was sharper than the increase of the
mineral diesel prices, especially in Germany, would have caused a drop in sales for the producers
supplying the market of this Member State.

(135)

It is firstly noted that the party in question did not provide any information to substantiate its claim.
the
Moreover, contrary to what was suggested by this party,
Community industry had increased its sales and market share over
In
addition, since crude oil prices are quoted on a world-wide basis, sales of the product concerned
should have been affected in the same manner as the sales of biodiesel produced in the Community.

the investigation revealed that
the period analysed.

(136) On the basis of the above, this argument had to be rejected.

6.3.7. Importance of the location of the biodiesel plants in the Community

(137) One interested party claimed that the location of any biodiesel producer would be an important
element in terms of competitiveness and uses Germany as an example to demonstrate that land­
locked locations of biodiesel producers would have to bear high transportation costs since all big
customers, in particular refineries and their blending facilities are located at the coast.

(138) The investigation showed that only a small number of Community industry producers was located in
landlocked locations. Moreover, for certain of these producers it was found that refineries existed also
in landlocked locations close to these producers. For others the investigation revealed that any
disadvantage for landlocked biodiesel producers in terms of being far away from their customers
(blenders, refineries) was compensated by being close to crushing mills and/or feedstock providers.

(139) On the basis of the above, the claim that the location of plant in landlocked locations is causing

material injury to the Community industry was rejected.

6.3.8. Producers related to the US exporters

(140)

It should be noted that the impact of the imports from the USA by the three companies referred to
in recital (60) has been taken into account in the analysis of the effect of dumped imports from the
USA made in recitals to (112) to (118) above. As far as their sales of own produced biodiesel are
concerned, the investigation did not point to a different pricing or behaviour than that of the
sampled Community producers, in particular during the IP.

6.4. Conclusion on causation

(141) The above analysis has demonstrated that there was a substantial increase in the volume and market
share of the low-priced dumped imports originating in the USA between 2005 and the IP. At the
same time,
the
Community industry during the IP.

these imports were significantly undercutting the price of

it was found that

(142) The various findings of the investigation and the analysis carried out, for the period 2005 and 2006
compared to the period 2007 to the IP, showed that there was a clear coincidence in time between
the surge of the low-priced imports from the USA and the significant deterioration of the economic
situation of the Community industry, in particular during the IP.

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(143) Based on the above analysis, which has properly distinguished and separated the effects of all known
factors on the situation of the Community industry from the injurious effects of the dumped imports,
it was provisionally concluded that the dumped imports from the USA have caused material injury to
the Community industry within the meaning of Article 3(6) of the basic Regulation.

7.1. Preliminary remark

7. COMMUNITY INTEREST

(144)

In accordance with Article 21 of the basic Regulation, the Commission examined whether, despite
the conclusion on injurious dumping, compelling reasons existed for concluding that it was not in
the Community interest
the
Community interest was based on an appreciation of all the various interests involved, including
those of the Community industry, the importers, the raw material suppliers and the users of the
product concerned.

to adopt measures in this particular case. The determination of

7.2. Interest of the Community industry

7.2.1. Effects of the imposition or non-imposition of measures on the Community industry

(145) As mentioned above, the Community industry suffered material injury caused by dumped imports
originating in the USA. Not taking measures would most likely lead to a continuation of the negative
trend of the financial situation of the Community industry. The situation of the Community industry
was particularly marked by a decrease in profitability of 12,6 percentage points between 2005 and
the IP due to insufficient price increases. Indeed, in view of the downwards trend in profitability, it is
most likely that the financial situation of the Community industry will deteriorate further in the
absence of any measures. This would ultimately lead to cuts in production and more closures of
production sites, which would therefore threaten employment and investments in the Community.

(146)

It is considered that the imposition of measures would restore fair competition on the market. It
should be noted that the Community industry's downwards trend in profitability is the result of its
difficulty in competing with the dumped, low-priced, imports originating in the USA. The imposition
of anti-dumping measures would likely put the Community industry in the position to maintain its
profitability at levels considered necessary for this capital intensive industry.

(147)

In conclusion, it was expected that measures would be effective in giving the Community industry
the opportunity to recover from the injurious dumping found during the investigation.

7.3. Interest of unrelated importers/traders in the Community

(148) Around 25 unrelated importers/traders in the Community were contacted upon initiation. However

no cooperation was received from these parties.

(149)

In these circumstances, it was provisionally not possible to precisely assess the possible impact of the
measures on importers.

7.4. Interest of users

(150) All known user companies involved in mineral diesel production and distribution, and also involved
in the mandatory blending of mineral diesel with biodiesel were contacted and questionnaires were
sent to them upon initiation.

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(151) Cooperation was obtained from only one user company. This user submitted a questionnaire
response by which it stated that it is in favour of putting an end to the flows of cheap USA
imports, because they create distortions of competition in the Community which causes injury to
the companies in charge of manufacture and sale of diesel, since certain competitors that do not
refrain from buying this cheap priced product have an unfair competition advantage when compared
to those that refrain from doing so. It also claimed that measures would allow the restarting of ester
production factories (in particular in Germany) and/or will allow projects of creating new esterifi­
cation factories in the Community to continue. As the European ester is made traditionally of
rapeseed (raw material of better quality than the palm or soya used for the production of B99),
the augmentation in the number of producers in Europe would therefore mean more products of
better quality that would result in a drop in the prices of the ester, for the consumer's final benefit.

(152) One users association, representing the interests of Shippers in one Member State claimed that the
imposition of measures would have an adverse effect on the activity of its members. It alleged that
diesel
is responsible for 20 to 25 % of the costs of the transport sector and that given the low
profitability of the sector (0-5 %), the price of diesel is determinant for the survival of thousands of
companies. These allegations could not, however, be verified as no replies to the users questionnaire
were received from individual members of the association in question.

(153)

In these circumstances, it was provisionally concluded that, on the basis of the information provided,
the effect of anti-dumping measures would appear to be mixed and thus no clear conclusion can be
made regarding the existence of compelling reasons, in the interest of users, not to adopt measures in
this particular case.

7.5. Interest of suppliers of raw materials

(154) Six suppliers replied to the questionnaire. Four supported the imposition of anti-dumping measures
by submitting that, if anti-dumping measures are not to be imposed, the long-term presence of the
Community industry would be at risk. Should this happen, there would be a clear negative impact on
their situation.

(155) Two others that were related to exporting producers of biodiesel in the USA, submitted that possible
measures would not be of significant impact as they would result to a shift in trade flows (switch to
imports from countries not covered by the measures).

(156) On the basis of the above, it could be concluded that the imposition of measures would overall have

a positive effect on the situation of raw material suppliers.

7.6. Competition and trade distorting effects

(157) One interested party alleged an incoherence of

the present proceeding with international and
Community policy decisions to promote bio-fuels production and sales related to environmental
protection and decrease in the dependency from mineral fuels.

(158)

In this regard it has to be noted that Article 21 of the basic Regulation requires that special
consideration shall be given to the need to eliminate trade distorting effects of injurious dumping
and to restore effective competition. Against this background, general considerations on environ­
mental protection and supply of mineral diesel cannot be taken into account in the analysis and at
the same time cannot justify unfair trade practices.

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(159) With respect to the Community market, following the imposition of anti-dumping measures, the
USA exporting producers concerned, given their strong market positions, would likely continue to
sell their products, albeit at non-dumped prices. It is also likely that there would still be a sufficient
number of major competitors on the Community market, namely the Community producers that
ceased temporarily production and others that have not been able to launch their production
activities due to the dumped imports. It should be noted in this respect that, at the beginning of
the period analysed, sales from Community producers not represented in this investigation accounted
for at least 30 % of the Community market and this share decreased dramatically due to the dumped
import from the USA. Therefore, it is likely that users will continue to have the choice of different
suppliers of biodiesel. If, however, no measures were to be imposed, the future of the Community
industry would be at stake. Its disappearance would severely reduce competition on the Community
market.

7.7. Conclusion on Community interest

(160) The imposition of measures on imports of biodiesel originating in the USA would clearly be in the
interests of the Community industry. It would allow the Community industry to grow and to recover
from the injury caused by the dumped imports. If, however, no measures were to be imposed, it is
likely that the economic situation of the Community industry would continue to deteriorate and
more operators would go out of business. Furthermore, while no clear conclusions could be made
with regard to users and importers, the imposition of measures was also expected to be in the
interests of raw material suppliers.

(161)

In view of the above,
Community interest against the imposition of anti-dumping duties in the present case.

it was provisionally concluded that there were no compelling reasons of

8. PROPOSAL FOR PROVISIONAL ANTI-DUMPING MEASURES

8.1. Injury elimination level

(162)

In view of the conclusions reached with regard to dumping,
injury, causation and Community
interest, provisional anti-dumping measures should be imposed in order to prevent further injury
being caused to the Community industry by the dumped imports.

(163) The level of any anti-dumping measures should be sufficient

to eliminate the injury to the
Community industry caused by the dumped imports, without exceeding the dumping margins
found. When calculating the amount of duty necessary to remove the effects of
injurious
dumping it was considered that any measures should allow the Community industry to obtain a
profit before tax that could be reasonably achieved under normal conditions of competition, i.e. in
the absence of dumped imports.

(164) For this purpose a profit margin of 15 % on turnover could be regarded as an appropriate level
which the Community industry could have expected to obtain in the absence of injurious dumping
based on the performance of the Community industry over the first part of the period considered
(2004, 2005 and 2006) and deemed reasonable for guaranteeing the productive investment on a
long-term basis for this newly established industry.

(165) The necessary price increase was then determined on the basis of a comparison of the weighted
average import price, as established for the price undercutting calculations, with the non-injurious
price of the like product sold by the Community industry on the Community market. The non-
injurious price has been obtained by adjusting the sales prices of the sampled Community producers
by the actual profit/loss made during the IP and by adding the above mentioned profit margin. Any
difference resulting from this comparison was then expressed as a percentage of the total CIF import
value.

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8.2. Provisional measures

(166)

In the light of the foregoing,
in accordance with Article 7(2) of the basic
Regulation, provisional anti-dumping duties should be imposed in respect of imports originating in
the USA at the level of the lower of the dumping and the injury margins, in accordance with the
lesser duty rule.

it is considered that,

(167) However, in the parallel AS proceeding, countervailing duties on imports of biodiesel originating in
the USA are also imposed. The subsidies found in this parallel proceeding are not export subsidies
and are therefore considered not to have affected the export price and the corresponding dumping
margin. Therefore, in view of the fact that the imports examined are common to both proceedings,
the anti-dumping duties can be imposed together with the countervailing duties to the extent that
both duties taken together do not exceed the injury elimination margin.

(168) On the basis of the above, anti-dumping duty rates have been established by comparing the injury
elimination margins, dumping margins and the countervailing duty rates. Consequently, the proposed
anti-dumping duties are as follows:

Company

Injury margin

Dumping
margin

Countervailing
duty rate

Anti-dumping
duty rate

Archer Daniels Midland Company

Cargill Inc.

Green Earth Fuels of Houston LLC

Imperium Renewables Inc.

Peter Cremer North America LP

World Energy Alternatives LLC

Co-operating non sampled companies

54,6 %

58,9 %

39,8 %

41,6 %

69,9 %

41,7 %

51,4 %

3,4 %

10,4 %

73,4 %

29,5 %

57,3 %

51,7 %

33,7 %

35,1 %

34,5 %

39,0 %

29,1 %

41,0 %

37,6 %

36,0 %

3,4 %

10,4 %

0,8 %

12,5 %

28,9 %

4,1 %

15,4 %

(169)

In view of the fact that that the anti-dumping duty will apply to blends containing by weight more
than 20 % of biodiesel, in proportion to their biodiesel content, it is considered appropriate for the
effective implementation of the measures by the customs authorities of the Member States to
determine the duties as fixed amounts on the basis of biodiesel content.

(170) The individual company anti-dumping duty rates specified in this Regulation were established on the
basis of the findings of the present investigation. Therefore, they reflect the situation found during
that investigation with respect to these companies. These duty rates (as opposed to the country-wide
duty applicable to ‘all other companies’) are thus exclusively applicable to imports of products
originating in the country concerned and produced by the companies and thus by the specific
Imported products produced by any other company not specifically
legal entities mentioned.
mentioned in the operative part of this Regulation with its name and address,
including entities
related to those specifically mentioned, cannot benefit from these rates and shall be subject to the
duty rate applicable to ‘all other companies’.

9. DISCLOSURE

(171) The above provisional findings will be disclosed to all interested parties which will be invited to make
their views known in writing and request a hearing. Their comments will be analysed and taken into
consideration where warranted before any definitive determinations are made. The provisional
findings may have to be reconsidered for the purposes of any definitive findings.

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HAS ADOPTED THIS REGULATION:

Article 1

1.
A provisional anti-dumping duty is hereby imposed on imports of fatty-acid mono-alkyl esters and/or
paraffinic gasoil obtained from synthesis and/or hydro-treatment, of non-fossil origin, commonly known as
‘biodiesel’, in pure form or in a blend containing by weight more than 20 % of fatty-acid mono-alkyl esters
and/or paraffinic gasoil obtained from synthesis and/or hydro-treatment, of non-fossil origin, falling within
CN codes ex 1516 20 98 (TARIC code 1516 20 98 20), ex 1518 00 91 (TARIC code 1518 00 91 20),
ex 1518 00 99 (TARIC code 1518 00 99 20), ex 2710 19 41 (TARIC code 2710 19 41 20), 3824 90 91,
ex 3824 90 97 (TARIC code 3824 90 97 87), and originating in the United States of America.

The rate of the provisional anti-dumping duty applicable to the products described in paragraph 1 and

2.
manufactured by the companies below shall be:

Company

AD duty rate Euro per tonne
net

TARIC additional code

Archer Daniels Midland Company, Decatur

Cargill Inc., Wayzata

Green Earth Fuels of Houston LLC, Houston

Imperium Renewables Inc., Seattle

Peter Cremer North America LP, Cincinnati

World Energy Alternatives LLC, Boston

Companies listed in the Annex

All other companies

23,6

60,5

70,6

76,5

208,2

82,7

122,9

182,4

A933

A934

A935

A936

A937

A939

see Annex

A999

The anti-dumping duty on blends shall be applicable in proportion in the blend, by weight, of the total
content of fatty-acid mono-alkyl esters and of paraffinic gasoils obtained from synthesis and/or hydro-
treatment, of non-fossil origin (biodiesel content).

The release for free circulation in the Community of the product referred to in paragraph 1 shall be

3.
subject to the provision of a security, equivalent to the amount of the provisional duty.

4.

Unless otherwise specified, the provisions in force concerning customs duties shall apply.

Article 2

1. Without prejudice to Article 20 of Regulation (EC) No 384/96,
interested parties may request
disclosure of the essential facts and considerations on the basis of which this Regulation was adopted,
make their views known in writing and apply to be heard orally by the Commission within 16 days of the
date of entry into force of this Regulation.

Pursuant to Article 21(4) of Regulation (EC) No 384/96, the parties concerned may comment on the

2.
application of this Regulation within one month of the date of its entry into force.

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Article 1 of this Regulation shall apply for a maximum period of six months.

Article 3

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the
European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 11 March 2009.

For the Commission

Catherine ASHTON
Member of the Commission

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ANNEX

US co-operating exporting producers not sampled

Company Name

City

TARIC additional code

AG Processing Inc.

Alabama Clean Fuels Coalition Inc.

Central Iowa Energy, LLC

Chesapeake Custom Chemical Corp.

Delta BioFuels, Inc.

East Fork Biodiesel, LLC

Ecogy Biofuels, LLC

ED & F Man Biofuels Inc.

Freedom Biofuels, Inc.

Fuel Bio

FUMPA Bio Fuels

Galveston Bay Biodiesel, LP (BioSelect Fuels)

Geo Green Fuels, LLC

Griffin Industries, Inc.

Huish Detergents, Inc.

Incobrasa Industries, Ltd.

Independence Renewable Energy Corp.

Innovation Fuels, Inc.

Iowa Renewable Energy, LLC

Johann Haltermann Ltd.

Lake Erie Biofuels, LLC

Louis Dreyfus Agricultural Industries, LLC

Memphis Biofuels, LLC

Middletown Biofuels, LLC

Omaha

Birmingham

Newton

Ridgeway

Natchez

Algona

Tulsa

New Orleans

Madison

Elizabeth

Redwood Falls

Houston

Houston

Cold Spring

Salt Lake City

Gilman

Perdue Hill

Newark

Washington

Houston

Erie

Wilton

Memphis

Blairsville

Musket Corporation

Oklahoma City

Nova Biofuels Clinton County, LLC

Organic Fuels, Ltd

Owensboro Grain Company LLC

Peach State Labs, Inc.

Clinton

Houston

Owensboro

Rome

A942

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A940

A942

A940

A940

A940

A940

A940

A940

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Company Name

City

TARIC additional code

Philadelphia Fry-O-Diesel Inc.

RBF Port Neches LLC

REG Ralston, LLC

Riksch BioFuels LLC

Sanimax Energy Inc.

Scott Petroleum

Soy Solutions

SoyMor Biodiesel, LLC

Trafigura AG

U.S. Biofuels, Inc.

United Oil Company

Vinmar Overseas, Ltd

Vitol Inc.

Western Dubque Biodiesel, LLC

Western Iowa Energy, LLC

Western Petroleum Company

Philadelphia

Houston

Ralston

Crawfordsville

DeForest

Itta Bena

Milford

Albert Lea

Stamford

Rome

Pittsbourgh

Houston

Houston

Farley

Wall Lake

Eden Prairie

A940

A940

A940

A940

A940

A942

A940

A940

A940

A940

A940

A938

A940

A940

A940

A940