[Federal Register Volume 84, Number 97 (Monday, May 20, 2019)]
[Notices]
[Pages 22813-22817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10438]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-489-836]


Dried Tart Cherries From the Republic of Turkey: Initiation of 
Countervailing Duty Investigation

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

DATES: Applicable May 13, 2019.

FOR FURTHER INFORMATION CONTACT: Maria Tatarska at (202) 482-1562 or 
Ajay Menon at (202) 482-1993, AD/CVD Operations, Enforcement and 
Compliance, International Trade Administration, U.S. Department of 
Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION: 

The Petition

    On April 23, 2019, the U.S. Department of Commerce (Commerce) 
received a countervailing duty (CVD) Petition concerning imports of 
dried tart cherries (cherries) from the Republic of Turkey (Turkey), 
filed in proper form on behalf of the Dried Tart Cherry Trade Committee 
(the petitioner), a trade association whose members produce the 
domestic like product in the United States (i.e., cherries).\1\ The 
Petition was

[[Page 22814]]

accompanied by an antidumping duty (AD) Petition concerning imports of 
cherries from Turkey.
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    \1\ See the Petitioner's Letter, ``Petitions for the Imposition 
of Antidumping and Countervailing Duties: Dried Tart Cherries from 
the Republic of Turkey,'' dated April 23, 2019 (the Petition).
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    On April 25, 2019, Commerce requested supplemental information 
pertaining to certain aspects of the Petition.\2\ The petitioner 
submitted its response on April 29, 2019.\3\
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    \2\ See Commerce's Letters, ``Petitions for the Imposition of 
Antidumping and Countervailing Duties on Imports of Dried Tart 
Cherries from the Republic of Turkey: Supplemental Questions,'' 
(General Issues Supplemental Questionnaire); and ``Petition for the 
Imposition of Countervailing Duties on Imports of Dried Tart 
Cherries from the Republic of Turkey: Supplemental Questions,'' both 
dated April 25, 2019.
    \3\ See the Petitioner's Letters, ``Dried Tart Cherries from 
Turkey: Response to General Issues Questionnaire'' (General Issues 
Supplement); and ``Dried Tart Cherries from Turkey: Response to 
Countervailing Duty Questionnaire,'' both dated April 29, 2019.
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    In accordance with section 702(b)(1) of the Tariff Act of 1930, as 
amended (the Act), the petitioner alleges that the Government of Turkey 
(GOT) is providing countervailable subsidies, within the meaning of 
sections 701 and 771(5) of the Act, to cherry growers and cherry 
processors in Turkey, and that imports of such products are materially 
injuring, or threatening material injury to, the domestic cherries 
industry in the United States. Consistent with section 702(b)(1) of the 
Act and 19 CFR 351.202(b), for those alleged programs on which we are 
initiating a CVD investigation, the Petition is accompanied by 
information reasonably available to the petitioner supporting its 
allegations.
    Commerce finds that the petitioner filed the Petition on behalf of 
the domestic industry, because the petitioner is an interested party, 
as defined in section 771(9)(E) of the Act. Commerce also finds that 
the petitioner demonstrated sufficient industry support necessary for 
the initiation of the requested CVD investigation.\4\
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    \4\ See the ``Determination of Industry Support for the 
Petition'' section, infra.
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Period of Investigation

    Because the Petition was filed on April 23, 2019, the period of 
investigation is January 1, 2018, through December 31, 2018.

Scope of the Investigation

    The product covered by this investigation is cherries from Turkey. 
For a full description of the scope of this investigation, see the 
Appendix to this notice.

Comments on the Scope of the Investigation

    During our review of the Petition, Commerce issued questions to, 
and received responses from, the petitioner pertaining to the proposed 
scope to ensure that the scope language in the Petition is an accurate 
reflection of the products for which the domestic industry is seeking 
relief.\5\
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    \5\ See General Issues Supplemental Questionnaire, at 3-4; see 
also General Issues Supplement, at 3-8.
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    As discussed in the Preamble to Commerce's regulations, we are 
setting aside a period for interested parties to raise issues regarding 
product coverage (i.e., scope).\6\ Commerce will consider all comments 
received from interested parties and, if necessary, consult with 
interested parties prior to the issuance of the preliminary 
determination. To facilitate preparation of its questionnaires, 
Commerce requests that all interested parties submit such comments by 
5:00 p.m. Eastern Time (ET) on June 3, 2019, which is the next business 
day after 20 calendar days from the signature date of this notice.\7\ 
Any rebuttal comments, which may include factual information, must be 
filed by 5:00 p.m. ET on June 13, 2019, which is 10 calendar days from 
the initial comments deadline.\8\ If scope comments or rebuttal 
comments include factual information,\9\ all such factual information 
should be limited to public information.
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    \6\ See Antidumping Duties; Countervailing Duties, 62 FR 27296, 
27323 (May 19, 1997) (Preamble).
    \7\ Because the deadline falls on a Sunday (i.e., June 2, 2019), 
the deadline becomes the next business day (i.e., June 3, 2019).
    \8\ See 19 CFR 351.303(b).
    \9\ See 19 CFR 351.102(b)(21) (defining ``factual 
information'').
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    Commerce requests that any factual information parties consider 
relevant to the scope of the investigation be submitted during this 
period. However, if a party subsequently finds that additional factual 
information pertaining to the scope of the investigation may be 
relevant, the party may contact Commerce and request permission to 
submit the additional information. All such submissions must be filed 
on the records of both the AD and CVD investigations.

Filing Requirements

    All submissions to Commerce must be filed electronically using 
Enforcement and Compliance's Antidumping Duty and Countervailing Duty 
Centralized Electronic Service System (ACCESS).\10\ An electronically 
filed document must be received successfully in its entirety by the 
time and date it is due. Documents exempted from the electronic 
submission requirements must be filed manually (i.e., in paper form) 
with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. 
Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 
20230, and stamped with the date and time of receipt by the applicable 
deadlines.
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    \10\ See Antidumping and Countervailing Duty Proceedings: 
Electronic Filing Procedures; Administrative Protective Order 
Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and 
Compliance: Change of Electronic Filing System Name, 79 FR 69046 
(November 20, 2014) for details of Commerce's electronic filing 
requirements, which went into effect on August 5, 2011. Information 
on help using ACCESS can be found at https://access.trade.gov/help.aspx, and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.
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Consultations

    Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, Commerce 
notified representatives of the GOT and the European Union (EU) of the 
receipt of the Petition and provided them the opportunity for 
consultations with respect to the Petition.\11\ Consultations were held 
with the GOT on May 7, 2019.\12\ The EU did not request consultations.
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    \11\ See Commerce's Letters, ``Dried Tart Cherries from the 
Republic of Turkey: Invitation for Consultations to Discuss the 
Countervailing Duty Petition,'' dated April 25, 2019, and ``Dried 
Tart Cherries from the Republic of Turkey: Invitation for 
Consultations to Discuss the Countervailing Duty Petition,'' dated 
April 30, 2019.
    \12\ See Memorandum to the File, ``Countervailing Duty Petition 
on Dried Tart Cherries from the Republic of Turkey: Consultations 
with the Government of Turkey,'' dated May 9, 2019.
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Determination of Industry Support for the 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, Commerce 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

[[Page 22815]]

using a statistically valid sampling method to poll the ``industry.''
    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 Commerce to look to producers and workers who produce the 
domestic like product. The 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 Commerce and the 
ITC must apply the same statutory definition regarding the domestic 
like product,\13\ they do so for different purposes and pursuant to a 
separate and distinct authority. In addition, Commerce'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.\14\
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    \13\ See section 771(10) of the Act.
    \14\ See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 
2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. 
Supp. 639, 644 (CIT 1988), aff'd 865 F. 2d 240 (Fed. Cir. 1989)).
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    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, the petitioner does not 
offer a definition of the domestic like product distinct from the scope 
of the investigation.\15\ Based on our analysis of the information 
submitted on the record, we have determined that cherries, as defined 
in the scope, constitute a single domestic like product, and we have 
analyzed industry support in terms of that domestic like product.\16\
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    \15\ See Volume I of the Petition, at 11-13 and Exhibit I-8.
    \16\ For a discussion of the domestic like product analysis as 
applied to this case and information regarding industry support, see 
Countervailing Duty Investigation Initiation Checklist: Dried Tart 
Cherries from the Republic of Turkey (CVD Initiation Checklist), at 
Attachment II, Analysis of Industry Support for the Antidumping and 
Countervailing Duty Petitions Covering Dried Tart Cherries from the 
Republic of Turkey (Attachment II). The CVD Initiation Checklist is 
dated concurrently with this notice and on file electronically via 
ACCESS. Access to documents filed via ACCESS is also available in 
the Central Records Unit, Room B8024 of the main Department of 
Commerce building.
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    In determining whether the petitioner has standing under section 
702(c)(4)(A) of the Act, we considered the industry support data 
contained in the Petition with reference to the domestic like product 
as defined in the ``Scope of the Investigation,'' in the Appendix to 
this notice. To establish industry support, the petitioner provided its 
own 2018 shipments of the domestic like product and compared this to 
the estimated total shipments of the domestic like product for the 
entire domestic industry, as reported by the Cherry Industry 
Administrative Board.\17\ The petitioner estimated the production of 
the domestic like product for the entire domestic industry based on 
shipment data. This is because production data for the entire domestic 
industry are not available for 2018 and the petitioner has established 
that shipments are a reasonable proxy for data on production of 
cherries.\18\ We relied on data provided by the petitioner for purposes 
of measuring industry support.\19\
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    \17\ See Volume I of the Petition, at 6-7 and Exhibits I-2 and 
I-5; see also General Issues Supplement, at 8-10 and Exhibit 11.
    \18\ See Volume I of the Petition, at 6-7 and Exhibits I-2 and 
I-5; see also General Issues Supplement, at Exhibit 11.
    \19\ For further discussion, see CVD Initiation Checklist, at 
Attachment II.
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    Our review of the data provided in the Petition, the General Issues 
Supplement, and other information readily available to Commerce 
indicates that the petitioner has established industry support for the 
Petition.\20\ First, the 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, Commerce is not 
required to take further action in order to evaluate industry support 
(e.g., polling).\21\ 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 Petition account for at least 25 percent of the total 
production of the domestic like product.\22\ 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 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 Petition.\23\ Accordingly, Commerce determines that the Petition 
was filed on behalf of the domestic industry within the meaning of 
section 702(b)(1) of the Act.
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    \20\ See CVD Initiation Checklist, at Attachment II.
    \21\ See id.; see also section 702(c)(4)(D) of the Act.
    \22\ See CVD Initiation Checklist, at Attachment II.
    \23\ Id.
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Injury Test

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

Allegations and Evidence of Material Injury and Causation

    The petitioner alleges that imports of the subject merchandise are 
benefitting from countervailable subsidies and that such imports are 
causing, or threaten to cause, material injury to the U.S. industry 
producing the domestic like product. In addition, the petitioner 
alleges that subject imports exceed the negligibility threshold 
provided for under section 771(24)(A) of the Act.\24\
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    \24\ See Volume I of the Petition, at 18 and Exhibit I-10.
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    The petitioner contends that the industry's injured condition is 
illustrated by a significant and increasing volume of subject imports; 
reduced market share; underselling and price depression or suppression; 
adverse impact on the domestic industry's production, capacity 
utilization, U.S. shipments, employment, and financial and operating 
performance; and lost sales and revenues.\25\ We have assessed the 
allegations and supporting evidence regarding material injury, threat 
of material injury, causation, as well as negligibility, and we have 
determined that these allegations are properly supported by adequate 
evidence, and meet the statutory requirements for initiation.\26\
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    \25\ Id. at 15-27 and Exhibits I-5, I-9, I-10, I-13, and I-14.
    \26\ See CVD Initiation Checklist, at Attachment III, Analysis 
of Allegations and Evidence of Material Injury and Causation for the 
Antidumping and Countervailing Duty Petitions Covering Dried Tart 
Cherries from the Republic of Turkey.
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Initiation of CVD Investigation

    Based on the examination of the Petition, we find that it meets the 
requirements of section 702 of the Act. Therefore, we are initiating a 
CVD investigation to determine whether imports of cherries from Turkey 
benefit from countervailable subsidies conferred by the GOT. In 
accordance with section 703(b)(1) of the Act and 19

[[Page 22816]]

CFR 351.205(b)(1), unless postponed, we will make our preliminary 
determination no later than 65 days after the date of this initiation.
    Based on our review of the Petition, we find that there is 
sufficient information to initiate a CVD investigation on 28 of the 29 
alleged programs. For a full discussion of the basis for our decision 
to initiate on each program, see CVD Initiation Checklist. A public 
version of the initiation checklist for this investigation is available 
on ACCESS.

Respondent Selection

    In the Petition, the petitioner named 24 companies in Turkey as 
producers/exporters of cherries.\27\ Commerce intends to follow its 
standard practice in CVD investigations and calculate company-specific 
subsidy rates in this investigation. In the event Commerce determines 
that the number of companies is large and it cannot individually 
examine each company based upon Commerce's resources, where 
appropriate, Commerce intends to select mandatory respondents based on 
U.S. Customs and Border Protection (CBP) data for U.S. imports of 
cherries from Turkey during the period of investigation under the 
appropriate Harmonized Tariff Schedule of the United States numbers 
listed in the ``Scope of the Investigation,'' in the Appendix.
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    \27\ See Volume III of the Petitions, at Exhibit III-1.
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    On May 6, 2019, Commerce released CBP data under Administrative 
Protective Order (APO) to all parties with access to information 
protected by APO and indicated that interested parties wishing to 
comment regarding the CBP data and respondent selection must do so 
within three business days of the publication date of the notice of 
initiation of this CVD investigation.\28\ Commerce will not accept 
rebuttal comments regarding the CBP data or respondent selection.
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    \28\ See Memorandum to the File, ``Dried Tart Cherries from the 
Republic of Turkey Countervailing Duty Petition: Release of Customs 
Data from U.S. Customs and Border Protection,'' dated May 6, 2019.
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    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 Commerce's website at http://enforcement.trade.gov/apo.
    Comments must be filed electronically using ACCESS. An 
electronically filed document must be received successfully, in its 
entirety, by ACCESS no later than 5:00 p.m. ET on the date noted above. 
We intend to finalize our decisions regarding respondent selection 
within 20 days of publication of this notice.

Distribution of Copies of the Petition

    In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 
351.202(f), copies of the public version of the Petition have been 
provided to the GOT via ACCESS. To the extent practicable, we will 
attempt to provide a copy of the public version of the Petition to each 
exporter named in the Petition, as provided under 19 CFR 351.203(c)(2).

ITC Notification

    We will notify 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 cherries from Turkey are materially 
injuring, or threatening material injury to, a U.S. industry.\29\ A 
negative ITC determination in Turkey will result in the investigation 
being terminated.\30\ Otherwise, this investigation will proceed 
according to statutory and regulatory time limits.
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    \29\ See section 703(a)(2) of the Act.
    \30\ See section 703(a)(1) of the Act.
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Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) 
Evidence submitted in response to questionnaires; (ii) evidence 
submitted in support of allegations; (iii) publicly available 
information to value factors under 19 CFR 351.408(c) or to measure the 
adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence 
placed on the record by Commerce; and (v) evidence other than factual 
information described in (i)-(iv). 19 CFR 351.301(b) requires any 
party, when submitting factual information, to specify under which 
subsection of 19 CFR 351.102(b)(21) the information is being submitted 
\31\ and, if the information is submitted to rebut, clarify, or correct 
factual information already on the record, to provide an explanation 
identifying the information already on the record that the factual 
information seeks to rebut, clarify, or correct.\32\ Time limits for 
the submission of factual information are addressed in 19 CFR 351.301, 
which provides specific time limits based on the type of factual 
information being submitted. Interested parties should review the 
regulations prior to submitting factual information in this 
investigation.
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    \31\ See 19 CFR 351.301(b).
    \32\ See 19 CFR 351.301(b)(2).
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Extensions of Time Limits

    Parties may request an extension of time limits before the 
expiration of a time limit established under 19 CFR 351.301, or as 
otherwise specified by the Secretary. In general, an extension request 
will be considered untimely if it is filed after the expiration of the 
time limit established under 19 CFR 351.301. For submissions that are 
due from multiple parties simultaneously, an extension request will be 
considered untimely if it is filed after 10:00 a.m. ET on the due date. 
Under certain circumstances, we may elect to specify a different time 
limit by which extension requests will be considered untimely for 
submissions which are due from multiple parties simultaneously. In such 
a case, we will inform parties in the letter or memorandum setting 
forth the deadline (including a specified time) by which extension 
requests must be filed to be considered timely. An extension request 
must be made in a separate, stand-alone submission; under limited 
circumstances we will grant untimely-filed requests for the extension 
of time limits. Parties should review Extension of Time Limits, 78 FR 
57790 (September 20, 2013), available at http://www.gpo.gov/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual 
information in this investigation.

Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding 
must certify to the accuracy and completeness of that information.\33\ 
Parties must use the certification formats provided in 19 CFR 
351.303(g).\34\ Commerce intends to reject factual submissions if the 
submitting party does not comply with the applicable certification 
requirements.
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    \33\ See section 782(b) of the Act.
    \34\ See Certification of Factual Information to Import 
Administration During Antidumping and Countervailing Duty 
Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule).
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Notification to Interested Parties

    Interested parties must submit applications for disclosure under 
APO in accordance with 19 CFR 351.305. On January 22, 2008, Commerce 
published Antidumping and Countervailing Duty Proceedings: Documents 
Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). 
Parties wishing to participate in this investigation

[[Page 22817]]

should ensure that they meet the requirements of these procedures 
(e.g., the filing of letters of appearance as discussed at 19 CFR 
351.103(d)).
    This notice is issued and published pursuant to sections 702 and 
777(i) of the Act and 19 CFR 351.203(c).

    Dated: May 13, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.

Appendix

Scope of the Investigation

    The scope of this investigation covers dried tart cherries, 
which may also be referred to as, e.g., dried sour cherries or dried 
red tart cherries. Dried tart cherries may be processed from any 
variety of tart cherries. Tart cherries are generally classified as 
Prunus cerasus. Types of tart cherries include, but are not limited 
to, Amarelle, Kutahya, Lutowka, Montmorency, Morello, and 
Oblacinska. Dried tart cherries are covered by the scope of this 
investigation regardless of the horticulture method through which 
the cherries were produced (e.g., organic or not), whether or not 
they contain any added sugar or other sweetening matter, whether or 
not they are coated in oil or rice flour, whether infused or not 
infused, and regardless of the infusion ingredients, including 
sugar, sucrose, fruit juice, and any other infusion ingredients. The 
scope includes partially rehydrated dried tart cherries that retain 
the character of dried fruit. The subject merchandise covers all 
shapes, sizes, and colors of dried tart cherries, whether pitted or 
unpitted, and whether whole, chopped, minced, crumbled, broken, or 
otherwise reduced in size. The scope covers dried tart cherries in 
all types of packaging, regardless of the size or packaging 
material.
    Included in the scope of this investigation are dried tart 
cherries that otherwise meet the definition above that are packaged 
with non-subject products, including, but not limited to, mixtures 
of dried fruits and mixtures of dried fruits and nuts, where the 
smallest individual packaging unit of any such product contains a 
majority (i.e., 50 percent or more) of dried tart cherries by dry 
net weight. Only the dried tart cherry components of such products 
are covered by this investigation; the scope does not include the 
non-subject components of such products.
    Included in the scope of this investigation are dried tart 
cherries that have been further processed in a third country, 
including but not limited to processing by stabilizing, preserving, 
sweetening, adding oil or syrup, coating, chopping, mincing, 
crumbling, packaging with non-subject products, or other packaging, 
or any other processing that would not otherwise remove the 
merchandise from the scope of the investigation if performed in the 
country of manufacture of the dried tart cherries.
    Excluded from the scope of this investigation are dried tart 
cherries that have been incorporated as an ingredient in finished 
bakery and confectionary items (cakes, cookies, candy, granola bars, 
etc.).
    The subject merchandise is currently classifiable under 
0813.40.3000 of the Harmonized Tariff Schedule of the United States 
(HTSUS). The subject merchandise may also enter under subheadings 
0813.40.9000, 0813.50.0020, 0813.50.0060, 2006.00.2000, 
2006.00.5000, and 2008.60.0060. The HTSUS subheadings set forth 
above are provided for convenience and U.S. customs purposes only. 
The written description of the scope is dispositive.

[FR Doc. 2019-10438 Filed 5-17-19; 8:45 am]
 BILLING CODE 3510-DS-P