Commission Implementing Regulation (EU) 2019/765 of 14 May 2019 repealing the anti-dumping duty on imports of bioethanol originating in the United States of America and terminating the proceedings in respect of such imports, following an expiry review pursuant to Article 11(2) of the Regulation (EU) 2016/1036 of the European Parliament and of the Council

Available at http://ethanolproducer.com/articles/14531/adm-announces-plans-to-reconfigure-ethanol-complex-in-illinois (last viewed 15 March 2019).

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(102) Subsequently, both claims concerning the intentions of US producers and traders to redirect their sales to the Union market described in recitals 98 and 99 must be rejected.

(103) The applicant further submitted a study by an external team of economists to claim that the Commission's calculations concerning the attractiveness of the Union market in terms of prices were not correct, and that, contrary to the Commission's conclusions, the Union market is attractive for US exports.

(104) The Commission acknowledged that in comparison to some of the US export markets, the Union market might be an attractive market in terms of price. Nevertheless, in the framework of assessing whether there was a likelihood of further injurious dumping, as required by Article 11(2) of the basic Regulation, and as explained in recitals 48 and 59, the Commission carried out its analysis of the attractiveness of the Union market in terms of prices on the basis of the three individual export markets suggested by the applicant. For completeness, it also did so with the prices of all US exports to third countries, excluding those to the Union, in total. The Commission is not legally required to examine every export market individually. In the present case the Commission examined two biggest US export markets and a third market selected by the applicant. It would be disproportionate to individually examine all 36 export markets (excluding the Union) of US producers and/or exporters of the product concerned when an analysis of the largest export markets does not reveal sufficient evidence of attractiveness in price. Further, as already concluded in recital 59, the applicant did not provide any justification as to why the three US export markets initially proposed by it and examined by the Commission did no longer constitute a suitable basis for the Commission's analysis. In relation to Brazil, Canada, and Peru, the three markets suggested by the applicant, the study makes the same findings as the Commission concerning the attractiveness of the Union market in terms of price. Therefore, the Commission considered that the submitted study did not provide any evidence of error in Commission's calculation. On the contrary, the Commission considered that the study submitted by the applicant supported its initial findings.

(105) Following the disclosure, the applicant submitted evidence on the level of import duties in China. With regard to China, the applicant further claimed that the fact that the exports to China had been already absorbed by other third countries should have been understood as a clear recognition that trade diversion had already been taking place.

(106) The Commission acknowledged that the applicant submitted sufficient evidence on the level of import duties in China on ethanol originating in the US. The Commission did not deny that the US exporters sought new markets after the import duties in China increased. Nevertheless, the Commission considered that the levels of US exports to China during the review investigation period are the most relevant to analyse the threat of possible trade diversion towards the Union market. Volumes that had already found new markets are not considered to be as relevant.

(107) Following the disclosure, the applicant claimed that the Brazilian market is not attractive for the US producers and/or exporters in view of the 20 % import tariff imposed on imports exceeding an import quota as explained in recital 96. To support this claim, the applicant referred to a news article dated October 2018 stating that [e]xports of corn-based US ethanol to Brazil sank to the lowest levels in nearly three years in August

Available at https://www.reuters.com/article/us-usa-ethanol-brazil/u-s-ethanol-exports-to-brazil-drop-to-nearly-three-year-low-idUSKCN1MF2FI (last viewed 15 March 2019).

. The applicant further claimed that the Commission should have taken into account the fact that Brazil has a strong domestic demand, but its supply situation, and therefore its import needs, vary. According to the applicant, most of the Brazilian sugar and bioethanol refineries are mixed units able to switch between the production of sugar and bioethanol based on the prices and profitability of those two products.

(108) With regard to the effect of the tariff rate quota, it should be noted that the quoted news article merely stated that the monthly export volumes in August 2018 reached a level that was the lowest since October 2015. Indeed, the export statistics of US ITC showed zero export volumes in August 2018 – a situation that last occurred in October 2015. However, the news article does not provide any information about export trends save for this comparison between August 2018 and October 2015. In fact, the US exports to Brazil resumed in September 2018 and in total increased in 2018 in comparison to the previous year.

(109) In addition, the Commission considered that the applicant did not provide sufficient evidence about the structure and functioning of the Brazilian bioethanol industry, nor was the Commission able to retrieve such evidence. Contrary to the claims of the applicant, the export statistics by US ITC showed that US exports of fuel ethanol to Brazil had been continuously increasing in the period considered and grew also in 2018. Therefore, the applicant's claims concerning the attractiveness of the Brazilian market for US producers and/or exporters must be rejected.

(110) Following the disclosure, the applicant claimed that the Commission artificially reduced the likely impact on the Union market of the Peruvian measures by viewing potential trade diversion from China and Peru in isolation.

(111) Taking into account the specifics of the Union market, i.e. the maximum allowed water content of the product under review and the RED sustainability certification that is de facto necessary to sell on the Union market as explained in recital 100, the Commission considered it unlikely that the US exports to Peru and China would be redirected to the Union market to their full extent. Furthermore, the applicant did not provide any evidence that would support its assertion. Therefore, this claim must be rejected.

3.3.3.

Conclusion on the likelihood of recurrence of dumping

(112) In light of the above assessment on the likelihood of recurrence of dumping should measures be allowed to lapse, the Commission concluded it unlikely that US bioethanol producers would export significant quantities of bioethanol to the Union at dumped prices, should the measures be allowed to lapse.

(113) Following the disclosure, the applicant claimed that the Commission should have followed its past practice to conclude that the non-cooperation of the US producers constitutes additional – and important – evidence that [e]xporting producers were not willing or able to show that no dumping would take place if measures were allowed to lapse

Council Regulation (EC) No 1001/2008 of 13 October 2008 imposing a definitive anti-dumping duty on imports of certain tube and pipe fittings, of iron or steel, originating in the Republic of Korea and Malaysia following an expiry review pursuant to Article 11(2) of Regulation (EC) No 384/96 (OJ L 275, 16.10.2008, p. 18).

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(114) In response, the Commission, first, recalled that its decisional practice – carried out on a case-by-case assessment – cannot bind future investigations and is, consequently, no indicator of how certain findings by the Commission should be made. Second, the determination in the investigation cited was considered an additional factor, among many, that led the Commission to its conclusion in that particular case. Third, as additional and supplementary factor, the non-cooperation of the US exporting producers may be considered as inhibiting the collection of detailed information with regard to the assessment of likelihood of continuation and recurrence of dumping, leading necessarily to the resort to the facts available under Article 18 of the basic Regulation. The Commission,

however, considered that non-cooperation cannot be the reason for extending the measures. In this particular case, the Commission did, indeed, deem the non-cooperation by US exporting producers an element inhibiting a full and thorough assessment of all the factors and therefore applied facts available. Having considered all the evidence available before it, and under application of Article 18 of the basic Regulation, the Commission concluded that there is no likelihood of recurrence of dumping should the measures be allowed to lapse. Therefore, this claim, too, must be rejected.

3.4.

Conclusion

(115) Consequently, in light of the lack of a likelihood of recurrence of dumped exports from the country concerned, there is no need to analyse the likelihood of recurrence of injury and Union interest. The measures on imports of bioethanol originating in the United States of America should therefore be repealed and the proceeding terminated.

1. CONCLUSION

(116) It follows from the above considerations that, under Article 11(2) of the basic Regulation, the anti-dumping measures applicable to imports of bioethanol originating in the US, imposed by Implementing Regulation (EU) No 157/2013, should be repealed.

(117) The Committee established by Article 15(1) of Regulation (EU) 2016/1036 did not deliver an opinion.

HAS ADOPTED THIS REGULATION:

Article 1

The anti-dumping duty on imports of bioethanol, sometimes referred to as fuel ethanol, i.e. ethyl alcohol produced from agricultural products (as listed in Annex I to the Treaty on the Functioning of the European Union), denatured or undenatured, excluding products with a water content of more than 0,3 % (m/m) measured according to the standard EN 15376, but including ethyl alcohol produced from agricultural products (as listed in Annex I to the Treaty on the Functioning of the European Union) contained in blends with gasoline with an ethyl alcohol content of more than 10 % (v/v) intended for fuel uses, currently falling within CN codes ex22071000, ex22072000, ex22089099, ex27101221, ex27101225, ex27101231, ex27101241, ex27101245, ex27101249, ex27101250, ex27101270, ex27101290, ex38140010, ex38140090, ex38200000 and ex38249992 (TARIC codes 2207100012, 2207200012, 2208909912, 2710122111, 2710122592, 2710123111, 2710124111, 2710124511, 2710124911, 2710125011, 2710127011, 2710129011, 3814001011, 3814009071, 3820000011 and 3824999266) and originating in the US is hereby repealed and the proceeding concerning these imports is terminated.

Article 2

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, 14 May 2019.

For the Commission

The President

Jean-Claude Juncker