[Federal Register Volume 85, Number 144 (Monday, July 27, 2020)]
[Notices]
[Pages 45173-45177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16221]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-834-811]
Silicon Metal from the Republic of Kazakhstan: Initiation of
Countervailing Duty Investigation
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
DATES: Applicable July 20, 2020.
FOR FURTHER INFORMATION CONTACT: Justin Neuman; AD/CVD Operations,
Office V, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-0486.
SUPPLEMENTARY INFORMATION:
The Petition
On June 30, 2020, the Department of Commerce (Commerce) received a
countervailing duty (CVD) petition concerning imports of silicon metal
from the Republic of Kazakhstan (Kazakhstan), filed in proper form on
behalf of the petitioners,\1\ domestic producers of silicon metal.\2\
The Petition was accompanied by antidumping duty (AD) petitions
concerning imports of silicon metal from Bosnia and Herzegovina,
Iceland, and Malaysia.
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\1\ The petitioners are Globe Specialty Metals, Inc. and
Mississippi Silicon LLC.
\2\ See Petitioners' Letter, ``Petitions for the Imposition of
Antidumping and Countervailing Duties: Silicon Metal from Bosnia and
Herzegovina, Iceland, the Republic of Kazakhstan, and Malaysia,''
dated June 30, 2020 (the Petition).
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On July 6 and 7, 2020, Commerce requested supplemental information
pertaining to certain aspects of the Petition in separate supplemental
questionnaires.\3\ The petitioners filed
[[Page 45174]]
responses to the supplemental questionnaires on July 8 and 10, 2020,
respectively.\4\
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\3\ See Commerce's Letters, ``Petitions for the Imposition of
Antidumping Duties on Imports of Silicon Metal from Bosnia and
Herzegovina, Iceland, and Malaysia and Countervailing Duties on
Imports from Kazakhstan: Supplemental Questions,'' dated July 6,
2020; and ``Petition for the Imposition of Countervailing Duties on
Imports of Silicon Metal from Kazakhstan: Supplemental Questions,''
dated July 7, 2020.
\4\ See Petitioners' Letters, ``Silicon Metal from Bosnia and
Herzegovina, Iceland, and Malaysia and Kazakhstan: General Volume
Petition Supplement,'' dated July 8, 2020 (General Issues
Supplement); and ``Silicon Metal from Kazakhstan: Volume V Petition
Supplement,'' dated July 10, 2020.
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In accordance with section 702(b)(1) of the Tariff Act of 1930, as
amended (the Act), the petitioners allege that the Government of
Kazakhstan (GOK) is providing countervailable subsidies, within the
meaning of sections 701 and 771(5) of the Act, to producers of silicon
metal in Kazakhstan, and that imports of such products are materially
injuring, or threatening material injury to, the domestic silicon metal
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 petitioners provided reasonably
available information in the Petition to support their allegations.
Commerce finds that the petitioners filed the Petition on behalf of
the domestic industry, because the petitioners are an interested party,
as defined in section 771(9)(C) of the Act. Commerce also finds that
the petitioners demonstrated sufficient industry support necessary for
the initiation of the requested CVD investigation.\5\
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\5\ See the ``Determination of Industry Support for the
Petition'' section, infra.
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Period of Investigation
Because the Petition was filed on June 30, 2020, the period of
investigation is January 1, 2019 through December 31, 2019.
Scope of the Investigation
The product covered by this investigation is silicon metal from
Kazakhstan. For a full description of the scope of this investigation,
see the appendix to this notice.
Scope Comments
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, will consult with
interested parties prior to the issuance of the preliminary
determination. If scope comments include factual information,\7\ all
such factual information should be limited to public information.
Commerce requests that all interested parties submit such comments by
5:00 p.m. Eastern Time (ET) on August 10, 2020, which is 21 calendar
days from the signature date of this notice. Any rebuttal comments,
which may include factual information, must be filed by 5:00 p.m. ET on
August 20, 2020, which is 10 calendar days from the initial comment
deadline.
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\6\ See Antidumping Duties; Countervailing Duties, Final Rule,
62 FR 27296, 27323 (May 19, 1997) (Preamble).
\7\ 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 also be
filed on the records of the concurrent AD investigations.
Filing Requirements
All submissions to Commerce must be filed electronically via
Enforcement and Compliance's AD and CVD Centralized Electronic Service
System (ACCESS), unless an exception applies.\8\ An electronically-
filed document must be received successfully in its entirety by the
time and date it is due.
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\8\ 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, effective 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 GOK of the receipt of the Petition and
provided them the opportunity for consultations with respect to the
Petition.\9\ Consultations were held with the GOK on July 13, 2020.\10\
The GOK submitted consultation remarks on July 14, 2020.\11\
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\9\ See Commerce's Letter, ``Countervailing Duty Petition on
Silicon Metal from Kazakhstan: Invitation for Consultations,'' dated
July 1, 2020.
\10\ See Memorandum, ``Consultations with Officials from the
Government of the Republic of Kazakhstan Regarding the
Countervailing Duty Investigation of Silicon Metal from the Republic
of Kazakhstan,'' dated July 14, 2020.
\11\ See GOK's Letter, ``Silicon Metal from Kazakhstan,'' dated
July 14, 2020.
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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 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,\12\ 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.\13\
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\12\ See section 771(10) of the Act.
\13\ 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
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be investigated, which normally will be the scope as defined in the
petition).
With regard to the domestic like product, the petitioners do not
offer a definition of the domestic like product distinct from the scope
of the investigation.\14\ Based on our analysis of the information
submitted on the record, we have determined that silicon metal, as
defined in the scope, constitutes a single domestic like product, and
we have analyzed industry support in terms of that domestic like
product.\15\
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\14\ See Volume I of the Petition at 25-28.
\15\ For a discussion of the domestic like product analysis as
applied to these cases, and information regarding industry support,
see the Kazakhstan CVD Initiation Checklist at Attachment II
(``Analysis of Industry Support for the Antidumping and
Countervailing Duty Petitions Covering Silicon Metal from Bosnia and
Herzegovina, Iceland, Malaysia, and Kazakhstan'') (Attachment II).
This checklist is dated concurrently with, and hereby adopted by,
this notice and is on file electronically via ACCESS.
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In determining whether the petitioners have 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 petitioners provided
their actual 2019 production of the domestic like product.\16\ To
estimate the 2019 production for the entire U.S. silicon metal
industry, the petitioners relied on their own 2019 production data and
estimated production data reported for the non-petitioning producer (DC
Alabama).\17\ We relied on data provided by the petitioners for
purposes of measuring industry support.\18\
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\16\ See Volume I of the Petition at 3-4 and Exhibits I-2 and I-
3; see also General Issues Supplement at 2.
\17\ See Volume I of the Petition at 3-4 and Exhibit I-5; see
also General Issues Supplement at 2.
\18\ See Volume I of the Petition at 3-4 and Exhibit I-5; see
also General Issues Supplement at 2. For further discussion, see
Attachment II of the Kazakhstan CVD Initiation Checklist.
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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 petitioners have established industry support for
the Petition.\19\ 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).\20\ 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.\21\ 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.\22\ 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.\23\
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\19\ See Volume I of the Petition at 3-4 and Exhibits I-2, I-3,
and I-5; see also General Issues Supplement at 2. For further
discussion, see Attachment II of the Kazakhstan CVD Initiation
Checklist.
\20\ See Attachment II of the Kazakhstan CVD Initiation
Checklist; see also section 702(c)(4)(D) of the Act.
\21\ See Attachment II of the Kazakhstan CVD Initiation
Checklist.
\22\ Id.
\23\ Id.
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Injury Test
Because Kazakhstan 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 Kazakhstan materially
injure, or threaten material injury to, a U.S. industry.
Allegations and Evidence of Material Injury and Causation
The petitioners allege 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 petitioners
allege 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 31 and Exhibit I-31.
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The petitioners contend that the industry's injured condition is
illustrated by a significant and increasing volume of subject imports;
declining market share; underselling; price depression and suppression;
lost sales and revenues; declines in capacity, production, shipments,
employment, prices, revenue, and profitability; and declining financial
performance.\25\ We assessed the allegations and supporting evidence
regarding material injury, threat of material injury, causation, and
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\ See Volume I of the Petition at 41-68 and Exhibits I-1, I-5
through I-7, I-10, I-13, I-15, I-16, I-18, I-20, I-23, I-24, I-32,
I-34, and I-37 through I-59.
\26\ See Kazakhstan CVD Initiation Checklist at Attachment III
(``Analysis of Allegations and Evidence of Material Injury and
Causation for the Antidumping and Countervailing Duty Petitions
Covering Silicon Metal from Bosnia and Herzegovina, Iceland,
Kazakhstan, and Malaysia'') (Attachment III).
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Initiation of CVD Investigation
Based upon an examination of the Petition and supplemental
responses, we find that the Petition meets the requirements of section
702 of the Act. Therefore, we are initiating a CVD investigation to
determine whether imports of silicon metal from Kazakhstan benefit from
countervailable subsidies conferred by the GOK.
Based on our review of the Petition, we find that there is
sufficient information to initiate a CVD investigation on all eight of
the alleged programs. For a full discussion of the basis for our
decision to initiate on each program, see Kazakhstan CVD Initiation
Checklist. A public version of the initiation checklist for this
investigation is available on ACCESS. In accordance with section
703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we
will make our preliminary determination no later than 65 days after the
date of this initiation.
Respondent Selection
In the Petition, the petitioners named two companies as producers
of silicon metal in Kazakhstan, as well as two additional companies as
potential exporters.\27\ On July 10, 2020, Commerce released U.S.
Customs and Border Protection (CBP) data for U.S. imports of silicon
metal from Kazakhstan under the appropriate Harmonized Tariff Schedule
of the United States numbers listed in the appendix to this notice
under Administrative Protective Order (APO) to all parties with access
to information protected by APO and indicated that interested parties
wishing to comment on the CBP data must do so within three business
days of the publication date of the notice of initiation of this
investigation.\28\ However, based on the
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CBP data, Commerce determines that there was not a large number of
producers/exporters of silicon metal during the POI. Commerce therefore
intends to follow its standard practice in CVD investigations and
calculate company-specific subsidy rates for each publicly-identifiable
company included in the CBP data. Therefore, we are selecting JSC NMC
Tau-Ken Samruk and Tau-Ken Temir LLP as mandatory respondents in this
proceeding. Interested parties that wish to comment on this selection,
or on the CBP data, may do so within three business days of the
publication date of this notice. Commerce will not accept rebuttal
comments regarding the CBP data or respondent selection.
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\27\ See Volume I of the Petition at 2.
\28\ See Memorandum, ``Petition for the Imposition of
Countervailing Duties on Imports of Silicon Metal from Kazakhstan:
Release of Entry Data,'' dated July 10, 2020.
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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 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. on the date noted
above, unless an exception applies.
Distribution of Copies of the 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 Petition has been
provided to the GOK via ACCESS. To the extent practicable, Commerce
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
Commerce 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 silicon metal from Kazakhstan are materially
injuring, or threatening material injury to, a U.S. industry.\29\ A
negative ITC determination will result in this investigation being
terminated.\30\ Otherwise, this investigation will proceed according to
the 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). Any party, when submitting factual
information, must specify under which subsection of 19 CFR 351.301(b)
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 Commerce. 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, Commerce 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, Commerce 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 Commerce 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 extension requests or 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); see also
frequently asked questions regarding the Final Rule, available at
http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.
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Notification to Interested Parties
Interested parties must submit applications for disclosure under
APO in accordance with 19 CFR 351.305. Instructions for filing such
applications may be found on the Commerce website at http://enforcement.trade.gov/apo. Parties wishing to participate in this
investigation should ensure that they meet the requirements of 19 CFR
351.103(d) (e.g., by filing a notice of appearance). Note that Commerce
has temporarily modified certain of its requirements for serving
documents containing business proprietary information, until further
notice.\35\
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\35\ See Temporary Rule Modifying AD/CVD Service Requirements
Due to COVID-19; Extension of Effective Period, 85 FR 41363 (July
10, 2020).
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This notice is issued and published pursuant to sections 702(c) and
777(i) of the Act, and 19 CFR 351.203(c).
Dated: July 20, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
Appendix
Scope of the Investigation
The scope of this investigation covers all forms and sizes of
silicon metal, including silicon metal powder. Silicon metal
contains at least 85.00 percent but less than 99.99 percent silicon,
and less than 4.00 percent iron, by actual weight. Semiconductor
grade silicon (merchandise containing at least 99.99 percent silicon
by actual weight and classifiable under Harmonized Tariff Schedule
of the United States (HTSUS) subheading 2804.61.0000) is
excluded from the scope of this investigation.
Silicon metal is currently classifiable under subheadings
2804.69.1000 and 2804.69.5000 of the HTSUS. While the HTSUS numbers
are provided for convenience and customs purposes, the
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written description of the scope remains dispositive.
[FR Doc. 2020-16221 Filed 7-24-20; 8:45 am]
BILLING CODE 3510-DS-P