[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Notices]
[Pages 42858-42861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20493]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-570-955]


Certain Magnesia Carbon Bricks from the People's Republic of 
China: Initiation of Countervailing Duty Investigation

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce

DATES: Effective Date: August 25, 2009.

FOR FURTHER INFORMATION CONTACT: Justin Neuman, Toni Page, or Nicholas 
Czajkowski; AD/CVD Operations, Office 6, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue NW, Washington, D.C. 20230; telephone: 
(202) 482-0486, (202) 482-1398, or (202) 482-1395 respectively.

SUPPLEMENTARY INFORMATION:

The Petitions

    On July 29, 2009, the Department of Commerce (the Department) 
received countervailing duty (CVD) and antidumping (AD) petitions 
concerning imports of certain magnesia carbon bricks (magnesia carbon 
bricks) from the People's Republic of China (PRC) filed in proper form 
by Resco Products, Inc. (Petitioner), domestic producers of magnesia 
carbon bricks. See ``Petition for the Imposition of Countervailing 
Duties: Certain Magnesia Carbon Bricks from the People's Republic of 
China'' (CVD PRC Petition). On August 3, 2009, the Department spoke via 
telephone with petitioner to request additional information and 
clarification of certain areas of the CVD petition involving 
countervailable subsidy allegations. See Memorandum from Mark Hoadley, 
Program Manager, AD/CVD Operations, Office 6, to the File, ``CVD 
Petition for Investigation of Magnesia Carbon Bricks from the People's 
Republic of China (PRC): Phone Call with Counsel for Petitioner'' dated 
August 4, 2009. Based on the Department's requests, the Petitioner 
timely filed additional information on August 7, 2009. On August 4 and 
12, 2009, the Department issued additional requests for information and 
clarification of certain areas of the CVD PRC Petition. Based on the 
Department's requests, Petitioner timely filed additional information 
pertaining to the CVD PRC Petition on August 10 and 14, 2009, 
(hereinafter, Supplement to the CVD PRC Petition dated August 10, 2009 
and Second Supplement to the CVD PRC Petition, dated August 14, 2009).
    In accordance with section 702(b)(1) of the Tariff Act of 1930, as 
amended (the Act), Petitioner alleges that producers/exporters of 
magnesia carbon bricks in the PRC received countervailable subsidies 
within the meaning of section 701 and 771(5) of the Act, and that 
imports from these exporters/producers materially injure, or threaten 
material injury to, an industry in the United States.
    The Department finds that Petitioner filed this CVD PRC Petition on 
behalf of the domestic industry because it is an interested party as 
defined in section 771(9)(C) of the Act, and Petitioner has 
demonstrated sufficient industry support with respect to the 
countervailing duty investigation that it is requesting the Department 
to initiate (see ``Determination of Industry Support for the CVD 
Petition'' below).

Period of Investigation

    The anticipated period of investigation (POI) is calendar year 
2008. See 19 CFR 351.204(b)(2).

Scope of Investigation

    The products covered by this investigation are magnesia carbon 
bricks from the PRC. For a full description of the scope of the 
investigation, please see the ``Scope of Investigation'' in Appendix I 
to this notice.

Comments on Scope of Investigation

    During our review of the CVD PRC Petition, we discussed the scope 
with Petitioner to ensure that it is an accurate reflection of the 
products for which the domestic industry is seeking relief. Moreover, 
as discussed in the preamble to the regulations (See Antidumping 
Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 
1997)), we are setting aside a period for interested parties to raise 
issues regarding product coverage. The Department encourages all 
interested parties to submit such comments by September 8, 2009.\1\ 
Comments should be addressed to Import Administration's APO/Dockets 
Unit, Room 1870, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230. The period of scope 
consultations is intended to provide the Department with ample 
opportunity to consider all comments and to consult with parties prior 
to the issuance of the preliminary determinations.
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    \1\ September 8, 2009 is the first business day after twenty 
calendar days from the signature date of this notice.

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[[Page 42859]]

Consultations

    Pursuant to section 702(b)(4)(A)(ii) of the Act, the Department 
held consultations with the government of the PRC (hereinafter, the 
GOC) with respect to the CVD PRC Petition on August 7, 2009. See 
Memorandum to the File, Countervailing Duty Petitions on Certain 
Magnesia Carbon Bricks from the People's Republic of China: 
Consultations with the Government of the People's Republic of China, on 
file in the Central Records Unit (CRU), Room 1117 of the main 
Department of Commerce building.

Determination of Industry Support for the CVD Petition

    Section 702(b)(1) of the Act requires that a petition be filed on 
behalf of the domestic industry. Section 702(c)(4)(A) of the Act 
provides that a petition meets this requirement if the domestic 
producers or workers who support the petition account for: (i) at least 
25 percent of the total production of the domestic like product; and 
(ii) more than 50 percent of the production of the domestic like 
product produced by that portion of the industry expressing support 
for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of 
the Act provides that, if the petition does not establish support of 
domestic producers or workers accounting for more than 50 percent of 
the total production of the domestic like product, the Department 
shall: (i) poll the industry or rely on other information in order to 
determine if there is support for the petition, as required by 
subparagraph (A); or (ii) determine industry support using a 
statistically valid sampling method.
    Section 771(4)(A) of the Act defines the ``industry'' as the 
producers as a whole of a domestic like product. Thus, to determine 
whether a petition has the requisite industry support, the statute 
directs the Department to look to producers and workers who produce the 
domestic like product. The United States International Trade Commission 
(ITC), which is responsible for determining whether ``the domestic 
industry'' has been injured, must also determine what constitutes a 
domestic like product in order to define the industry. While both the 
Department and the ITC must apply the same statutory definition 
regarding the domestic like product (see section 771(10) of the Act), 
they do so for different purposes and pursuant to a separate and 
distinct authority. In addition, the Department's determination is 
subject to limitations of time and information. Although this may 
result in different definitions of the like product, such differences 
do not render the decision of either agency contrary to law. See USEC, 
Inc. v. United States, 132 F. Supp. 2d 1, 8 (Ct. Int'l Trade 2001), 
citing Algoma Steel Corp. Ltd. v. United States, 688 F. Supp. 639, 644 
(Ct. Int'l Trade 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989), cert. 
denied 492 U.S. 919 (1989).
    Section 771(10) of the Act defines the domestic like product as ``a 
product which is like, or in the absence of like, most similar in 
characteristics and uses with, the article subject to an investigation 
under this title.'' Thus, the reference point from which the domestic 
like product analysis begins is ``the article subject to an 
investigation'' (i.e., the class or kind of merchandise to be 
investigated, which normally will be the scope as defined in the 
petition).
    With regard to the domestic like product, Petitioner does not offer 
a definition of domestic like product distinct from the scope of the 
investigations. Based on our analysis of the information submitted on 
the record, we have determined that magnesia carbon bricks constitute a 
single domestic like product and we have analyzed industry support in 
terms of that domestic like product. For a discussion of the domestic 
like product analysis in this case, see Countervailing Duty 
Investigation Initiation Checklist: Magnesia Carbon Bricks from the PRC 
(CVD Initiation Checklist) at Attachment II, Analysis of Industry 
Support for the Petitions Covering Certain Magnesia Carbon Bricks from 
the People's Republic of China and Mexico, dated concurrently with this 
notice and on file in the CRU, Room 1117 of the main Department of 
Commerce building.
    In determining whether Petitioner has standing under section 
702(c)(4)(A) of the Act, we considered the industry support data 
contained in the CVD PRC Petition with reference to the domestic like 
product as defined in the ``Scope of Investigations,'' Appendix I of 
this notice. To establish industry support, Petitioner provided its own 
2008 production of the domestic like product, as well as the production 
of the two supporters of the CVD PRC Petition, and compared this to the 
estimated total production of the domestic like product for the entire 
domestic industry. See the CVD PRC Petition, at Exhibits 2-4, 
Supplement to the CVD PRC Petition, dated August 10, 2009, at 8-12, and 
Exhibits R2-R-6, and Second Supplement to the CVD PRC Petition, dated 
August 14, 2009, at 1-2. Petitioner estimated total 2008 production of 
the domestic like product based on its own production data, data from 
the two supporters of the CVD PRC Petition, and knowledge of the U.S. 
industry. See the CVD PRC Petition, at Exhibits 2-4, Supplement to the 
CVD PRC Petition, dated August 10, 2009, at 8-12, and Exhibits R2-R-6, 
and Second Supplement to the CVD PRC Petition, dated August 14, 2009, 
at 1-2; see also CVD Initiation Checklist at Attachment II.
    Our review of the data provided in the CVD PRC Petition, the 
supplemental submissions, and other information readily available to 
the Department indicates that Petitioner has established industry 
support. First, the CVD PRC Petition established support from domestic 
producers (or workers) accounting for more than 50 percent of the total 
production of the domestic like product and, as such, the Department is 
not required to take further action in order to evaluate industry 
support (e.g., polling). See section 702(c)(4)(D) of the Act, see also 
CVD Initiation Checklist at Attachment II. Second, the domestic 
producers (or workers) have met the statutory criteria for industry 
support under section 702(c)(4)(A)(i) of the Act because the domestic 
producers (or workers) who support the CVD PRC Petition account for at 
least 25 percent of the total production of the domestic like product. 
See CVD Initiation Checklist at Attachment II. Finally, the domestic 
producers (or workers) have met the statutory criteria for industry 
support under section 702(c)(4)(A)(ii) of the Act because the domestic 
producers (or workers) who support the CVD PRC Petition account for 
more than 50 percent of the production of the domestic like product 
produced by that portion of the industry expressing support for, or 
opposition to, the CVD PRC Petition. Accordingly, the Department 
determines that the CVD PRC Petition was filed on behalf of the 
domestic industry within the meaning of section 702(b)(1) of the Act. 
See id.
    The Department finds that Petitioner filed the CVD PRC Petition on 
behalf of the domestic industry because it is an interested party as 
defined in section 771(9)(C) of the Act and it has demonstrated 
sufficient industry support with respect to the countervailing 
investigation that it is requesting the Department to initiate. See id.

Injury Test

    Because the PRC is a ``Subsidies Agreement Country'' within the 
meaning of section 701(b) of the Act, section 701(a)(2) of the Act 
applies to this investigation. Accordingly, the ITC must determine 
whether imports of the subject merchandise from the PRC

[[Page 42860]]

materially injure, or threaten material injury to, a U.S. industry.

Allegations and Evidence of Material Injury and Causation

    Petitioner alleges that imports of magnesia carbon bricks from the 
PRC are benefitting from countervailable subsidies and that such 
imports are causing, or threaten to cause, material injury to the 
domestic industry producing magnesia carbon bricks. In addition, 
Petitioner alleges that subsidized imports exceed the negligibility 
threshold provided for under section 771(24)(A) of the Act.
    Petitioner contends that the industry's injured condition is 
illustrated by reduced market share, underselling and price depressing 
and suppressing effects, increased import penetration, lost sales and 
revenue, reduced production, reduced capacity utilization, reduced 
shipments, reduced employment, and overall poor financial performance. 
We have assessed the allegations and supporting evidence regarding 
material injury, threat of material injury, and causation, and we have 
determined that these allegations are properly supported by adequate 
evidence and meet the statutory requirements for initiation. See CVD 
Initiation Checklist at Attachment III, Analysis of Allegations and 
Evidence of Material Injury and Causation for the Petitions Covering 
Certain Magnesia Carbon Bricks from the People's Republic of China and 
Mexico.

Initiation of Countervailing Duty Investigation

    Section 702(b)(1) of the Act requires the Department to initiate a 
CVD proceeding whenever an interested party files a CVD petition on 
behalf of an industry that: (1) alleges the elements necessary for an 
imposition of a duty under section 701(a) of the Act; and (2) is 
accompanied by information reasonably available to the petitioners 
supporting the allegations.
    The Department has examined the CVD PRC Petition on magnesia carbon 
bricks from the PRC and finds that it complies with the requirements of 
section 702(b)(1) of the Act. Therefore, in accordance with section 
702(b)(1) of the Act, we are initiating a CVD investigation to 
determine whether producers/exporters of magnesia carbon bricks in the 
PRC receive countervailable subsidies. For a discussion of evidence 
supporting our initiation determination, see CVD Initiation Checklist.
    We are including in our investigation the following programs 
alleged in the CVD PRC Petition to provide countervailable subsidies to 
producers/exporters of the subject merchandise:
A. Provision of Inputs for Less than Adequate Remuneration (LTAR)
    1. Provision of Land-Use Rights to State-Owned Enterprises (SOEs) 
for LTAR
    2. Provision of Electricity at LTAR
B. Export Restraints of Raw Materials
C. Tax Benefit Programs
    1. Two Free/Three Half Program for Foreign-Invested Enterprises 
(FIEs)
    2. Income Tax Reductions for Export-Oriented FIEs
    3. Preferential Income Tax Policy for Enterprises in the Northeast 
Region
    4. Forgiveness of Tax Arrears for Enterprises in the Old Industrial 
Bases of Northeast China
    5. Location-Based Income Tax Reduction Programs for FIEs
    6. Local Income Tax Exemption and Reduction Programs for 
``Productive'' FIEs
    7. Domestic Preference Tax Benefits
    a. Income Tax Credits for Domestically Owned Companies Purchasing 
Domestically Produced Equipment
    b. Income Tax Credits for FIEs Purchasing Domestically Produced 
Equipment
    c. VAT Rebates on Purchases of Domestically Produced Equipment
    8. Preferential Tax Programs for Enterprises Recognized as High or 
New Technology Enterprises
D. Northeast Revitalization Program and Related Provincial Policies
    a. E. Direct Grants
    1. The State Key Technology Renovation Project Fund
    2. Famous Brands Programs
F. Grants to Companies for ``Outward Expansion'' and Export Performance 
in Guangdong Province
G. Preferential Loans and Directed Credit to the Magnesia Carbon Brick 
Industry
H. Cash Grant Programs
    1. Fund for Supporting Technological Innovation for Technological 
Small- and Medium-Sized Enterprises (SMEs)
    2. Development Fund for SMEs
    3. Fund for International Market Exploration by SMEs
I. Zhejiang Province Program to Rebate Antidumping Costs
    For further information explaining why the Department is 
investigating these programs, see CVD Initiation Checklist.
    We are not including in our investigation the following programs 
alleged to benefit producers/exporters of the subject merchandise in 
the PRC:
A. Provision of Water for Less Than Adequate Remuneration
B. Provision of Natural Gas for Less Than Adequate Remuneration
C. VAT and Tariff Exemptions for Purposes of Fixed Assets Under the 
Foreign Trade Development Fund Program
D. Shenzhen City Program to Rebate Antidumping Costs
    For further information explaining why the Department is not 
initiating an investigation of these programs, see CVD Initiation 
Checklist.

Respondent Selection

    For this investigation, the Department intends to select 
respondents based on U.S. Customs and Border Protection (CBP) data for 
U.S. imports during the POI (i.e., calendar year 2008). We intend to 
release the CBP data under Administrative Protective Order (APO) to all 
parties with access to information protected by APO within five days of 
the announcement of the initiation of this investigation. Interested 
parties may submit comments regarding the CBP data and respondent 
selection within seven calendar days of publication of this notice. We 
intend to make our decision regarding respondent selection within 20 
days of publication of this notice.
    Interested parties must submit applications for disclosure under 
APO in accordance with 19 CFR 351.305(b). Instructions for filing such 
applications may be found on the Department's website at http://ia.ita.doc.gov/apo.

Distribution of Copies of the CVD Petition

    In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 
351.202(f), a copy of the public version of the CVD PRC Petition has 
been provided to the representatives of the GOC. Because of the 
particularly large number of producers/exporters identified in the CVD 
PRC Petition, the Department considers the service of the public 
version of the petition to the foreign producers/exporters satisfied by 
the delivery of the public version to the GOC, consistent with 19 CFR 
351.203(c)(2).

ITC Notification

    We have notified the ITC of our initiation, as required by section 
702(d) of the Act.

Preliminary Determination by the ITC

    The ITC will preliminarily determine, within 45 days after the date 
on which the petition was filed, whether there is a reasonable 
indication that imports of subsidized magnesia carbon bricks from the 
PRC materially injure, or threaten material injury to, a U.S. industry. 
See

[[Page 42861]]

section 703(a)(2) of the Act. A negative ITC determination will result 
in the investigation being terminated; see section 703(a)(1) of the 
Act. Otherwise, the investigation will proceed according to statutory 
and regulatory time limits.
    This notice is issued and published pursuant to section 777(i) of 
the Act.

    Dated: August 18, 2009.
Carole Showers,
Acting Deputy Assistant Secretary for Policy and Negotiations.

Appendix I

Scope of the Investigation

    Imports covered by this petition consist of certain chemically 
bonded (resin or pitch), magnesia carbon bricks with a magnesia 
component of at least 70 percent magnesia (``MgO'') by weight, 
regardless of the source of raw materials for the MgO, with carbon 
levels ranging from trace amounts to 30 percent by weight, regardless 
of enhancements, (for example, magnesia carbon bricks can be enhanced 
with coating, grinding, tar impregnation or coking, high temperature 
heat treatments, anti-slip treatments or metal casing) and regardless 
of whether or not anti-oxidants are present (for example, antioxidants 
can be added to the mix from trace amounts to 15 percent by weight as 
various metals, metal alloys, and metal carbides). Certain magnesia 
carbon bricks that are the subject of this investigation are currently 
classifiable under subheadings 6902.10.10.00, 6902.10.50.00, 
6815.91.00.00, and 6815.99 of the Harmonized Tariff Schedule of the 
United States (HTSUS). While HTSUS subheadings are provided for 
convenience and customs purposes, the written description is 
dispositive.

[FR Doc. E9-20493 Filed 8-24-09; 8:45 am]
BILLING CODE 3510-DS-S